Although a large number of European writers have emphasized that including Economic Social and Cultural Rights in codifications will collapse the political system but Right to Housing still remains a contentious right despite the fact it does not have much/rich developed Jurisprudence on it. Moreover, it has been embedded/codified as a right in some Jurisdictions amongst which India and South Africa are on the top. The real issues with the right are that whether it is justiciable or not? If it is justiciable, then can individuals bring complaints if their right is violated? Is there any concrete or exact definition of what is adequate housing? Despite the fact that the judicial bodies are coping with these challenges and controversies attached to the right but its success seems very far away from the point we are standing at the moment. The right to housing is recognized in a number of international human rights instruments. Article 25 of the Universal Declaration of Human Rights recognizes the right to housing as part of the right to an adequate standard of living. The ICESCR does not provide any definition of right to housing.
There are three approaches to litigate in right to housing, such as;
- Tackle the deprivation of housing through Civil and Political Rights (protect the aspects of housing under Civil and Political Rights)
- Explicitly codifying right to housing in Legislations/ different instruments.
- Imply a substantive right to housing into another right.
Cecilia Kell v Canada No 19/2008
Decision in favour:
The UN Committee on the Elimination of Discrimination against Women ruled in favour of Cecilia Kell, an indigenous Canadian, in her complaint on discrimination against Canada.
Facts:In 1990, Cecilia Kell, an aboriginal woman from the Northwest Territories, returned to her community of Rae-Edzo after attending college. The mother of three had left her children in the care of relatives, hoping to be reunited with them once she had established herself and secure the home for her family.
When the local housing authority made lodging available to indigenous people under a special scheme, Kell decided to apply. She was living with her partner, one of the Directors of the Housing Authority Board at the time who, once hearing of the scheme, attempted to apply in his own name. After his application was rejected because he was not a member of the Rae-Edzo community, the housing authority advised Kell to list both herself and her partner in her application. This proved successful as a house was assigned to them as co-owners. Over the three years that followed the acquisition, Kell experienced spousal abuse and her situation worsened when she got a job and became financially independent.
In 1993, the Northwest Territories Housing Corporation, the state agency administering the earmarked properties in the locality, removed Kell’s name from the Assignment Lease at the request of her partner and without her knowledge or consent. Two years later, Kell was evicted from her home by her partner.
Over a period of ten years Kell fought to regain her property rights through the Canadian legal system. She filed three consecutive suits with different legal aid lawyers assigned to each case. Shortly after the first suit, Kell’s former partner was diagnosed with cancer and died before the end of her legal battle. By the time she filed the third action, the property had been sold by her partner’s estate.
Filing of complaint after exhausting all domestic remedies
In 2008, contending that she had exhausted all domestic remedies, Kell filed an individual complaint* against Canada through the UN Committee on the Elimination of Discrimination against Women, claiming to be the victim of violations of a number of articles of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Kell’s submission
The complaint registered by Kell claimed, in particular, that Canada had “failed to ensure that its agents refrain from engaging in any act or practice of discrimination against women, when they removed [Kell’s] name from the lease without her consent.”
“She submits that the State party has contravened Article 16, paragraph 1(h),of the Convention as it failed to ensure that its agents afford the same rights to her in comparison to her partner’s rights in respect of ownership, acquisition, management, administration and enjoyment of the property.”
Decision of committee
The Committee concluded that Kell’s property rights had been prejudiced due to public authority acting with her partner, and that she had been discriminated against as an aboriginal woman. The Committee also found that Canada had failed to provide Kell effective legal protection when she sought to regain her property rights.
The Committee established that Canada, as party to the Convention and its Optional Protocol, had failed to fulfil its obligations under Articles 1, 2 and 16 and that it should provide monetary compensation and housing matching what Kell was deprived of. The Committee also recommended recruiting and training more aboriginal women to provide legal assistance, as well as review Canada’s legal system to ensure that aboriginal women victim of domestic violence have effective access to justice.
Importance of decision
It was a partial victory. Although she was unsuccessful on actual grounds, but, in the end after a struggle of 20 years she was successful on other grounds such as discrimination.
Hajrizi Dzemajl et al v Serbia and Montenegro
Facts: On April 14 and 15, 1995, following an alleged rape of a non-Romani girl by two Romani youths, several hundred non-Roma gathered and, with the acquiescence of the municipal authorities and the police, destroyed the Romani settlement in Bozova Glavica, Danilovgrad. The police simply stood by and did nothing as the pogrom unfolded. Though the Roma were able to flee, their homes and other belongings were ultimately burned or otherwise destroyed In fear for their lives, the Danilovgrad Roma fled the town and moved to the outskirts of Podgorica where most still live under terrible conditions and in abject poverty. Moreover, in the aftermath of the incident, several Roma were fired from the jobs they held in Danilovgrad, under the excuse that they had stopped coming to work. The fact that they had to leave the town in mortal fear was clearly not taken into account by their employers.
Decision by UN Committee against Torture
The suffering visited upon the victims was severe enough to qualify as “torture”, because:
- The inhabitants of the Bozova Glavica settlement were forced to abandon their homes in haste given the risk of severe personal and material harm;
(b) Their settlement and homes were completely destroyed. Basic necessities were also destroyed;
(c) Not only did the resulting forced displacement prevent them from returning to their original settlement, but many members of the group were forced to live poorly, without jobs or fixed places of abode;
(d) Thus displaced and wronged, these Yugoslavia nationals have still not received any compensation, seven years after the fact, although they have approached the domestic authorities;
(e) All the inhabitants who were violently displaced belong to the Romani ethnic group, which is known to be especially vulnerable in many parts of Europe. In view of this, States must afford them greater protection;
The above amounts to a presumption of “severe suffering”, certainly “mental” but also inescapably “physical” in nature even if the victims were not subjected to direct physical aggression.
We thus consider that the incidents at issue should have been categorized as “torture”.
Final Decision holding state responsible:
The illegal incidents for which the Yugoslavia State is responsible constitute “torture” within the meaning of article 1, paragraph 1, of the Convention, not merely “cruel, inhuman or degrading treatment” as covered by article 16. The failure of the State authorities to react to violent evictions, forced displacement and the destruction of homes and property by individuals amounts to unlawful acquiescence which, in our judgement, violates article 1, paragraph 1, particularly when read in conjunction with article 2, paragraph 1, of the Convention.
Here, we have seen that, remedy could be seek under Civil and Political Rights when there is a violation.
Republic of South Africa v Grootboom,
The facts: The respondents had been evicted from their informal homes situated on private land earmarked for formal low-cost housing. They lacked basic sanitation or electricity. The group brought an action under sections 26(the right of access to adequate housing) and 28 (children’s right to basic shelter) of the South African Constitution for action by various levels of government. They applied to a High Court for an order requiring the government to provide them with adequate basic shelter or housing until they obtained permanent accommodation.
The High Court and Constitutional court Decisions:
The High Court, relying on the principles of judicial deference outlined by the Constitutional Court in the Soobramoney case, found that the respondents had taken “reasonable measures within available resources to achieve the progressive realisation of the right to have access to adequate housing” – as required by s. 26(2) of the Constitution. However, because the right of children to shelter in article 28 was not subject to available resources, the High Court held that the applicants were entitled to be provided with basic shelter. On appeal to the Constitutional Court the Court found no violation of s. 28 but found instead a violation of the right to adequate housing in s.26. The Court held that article 26 obliges the state to devise and implement a coherent, co-ordinated housing programme and that in failing to provide for those in most desperate need the government had failed to take reasonable measures to progressively realize the right to housing. The Court ordered that the various governments “devise, fund, implement and supervise measures to provide relief to those in desperate need.” The South African Human Rights Commission agreed to monitor and if necessary report on the governments’ implementation of this order.
Enforcement of the Decision and Outcomes:
The decision had a major impact on housing policy in South Africa. Most municipalities put in place a “Grootboom allocation” in their budgets to address the needs of those in desperate need. The applicants were provided with basic amenities as a result of a settlement reached prior to the hearing of the case by the Constitutional Court, but the results of the decision for the community have been disappointing. Further legal action was taken to enforce the remedy against the local government.
Significance of the Case:
This is probably the most cited ESC rights case, laying the foundation for subsequent successful ESC rights claims in South Africa and elsewhere. The Court lays the foundation for the justiciability of the obligation to progressively realize ESC rights, which the Court will review on the basis of the “reasonableness” test, and exercise deference, where appropriate, at the stage of remedy.
Weak & Strong Points of Judgment:
- The court only made a declaratory order which had no teeth.
- The court ignored did not pay attention to “whether there was a violation or not”, and moved directly to state obligations that, “whether the action was reasonable”.
- It only recommended the state that has acted wrongly.
- The court stepped back from giving individual right to make a complaint and especially the remedy was not individualistic.
The good point was that the court did not want to push the individuals having good lawyers/those who can afford and bring claims before the court only to enjoy the resources of state. But even then it this was not an impressive approach.
Development of South African Jurisprudence in right to housing:
In case of Occupier of 51 Olivia Rol, the South African court unanimously decided that state must consult with individuals whom it is going to evict. So, it added a lot to Jurisprudence that engagement and consultation became important.
In Joe Slovo Case, the judgment underscored the necessity of meaningful engagement and the provision of alternative accommodation. The Court held that no person may be moved unless alternative accommodation is provided to him or her. The Court also required individual engagement with households prior to their move. The Court directed that the state engage meaningfully with the residents on the timetable for the move and on any other matter on which they agree to move.
So, after these two cases, the Jurisprudence changed. Reasonableness now means that state shall have engagement and consultation before eviction.
Note: Generally the South African Constitution allow individual complaints to be lodged, in some eviction cases the court has given individual remedies but in most of the cases it provides guidance to the state in respect of its obligations. It would not be untrue to say that SA Constitution is a high profile example of codified Right to Housing.
European Federation of National Organisations working with the Homeless (FEANTSA) v France ESCR Case No. 39/2006 (European Social Committee) (Decision on Merits 5 December 2007).
Facts and Decision of the case:
FEANTSA alleged that France was in violation of Article 31 of the Revised European Social Charter (RESC) due to its failure to ensure an effective right to housing for its residents in a range of different contexts. Article 31 on the Right to Housing states: “With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed (1) to promote access to housing of an adequate standard; (2) to prevent and reduce homelessness with a view to its gradual elimination; (3) to make the price of housing accessible to those without adequate resources.”
Having considered a wide range of French housing-related legislation, policies and plans (as well as the implementation of such), the Committee made the following findings:
- There was a violation of Article 31(1) on the grounds of insufficient progress as regards the eradication of substandard housing and the lack of proper amenities of a large number of households;
- There was a violation of Article 31(2) on the grounds of unsatisfactory implementation of legislation on the prevention of evictions and the lack of measures to provide rehousing solutions for evicted families;
- There was a violation of Article 31(2) on the grounds that measures in place to reduce the number of homeless were insufficient, both quantitative and qualitative terms;
- There was a violation of Article 31(3) on the grounds of insufficient supply of social housing accessible to low-income groups;
- There was a violation of Article 31(3) on the grounds of the malfunctioning of the social housing allocation system, and the insufficiency of related remedies available to people denied social housing, and
- There was a violation of Article 31(3), taken in conjunction with Article E on non-discrimination, on the grounds of the deficient implementation of legislation on stopping places for Travellers.
While the Committee agreed that the wording of Article 31 ‘cannot be interpreted’ as imposing an ‘obligation of results, it emphasized that Charter rights must take a ‘practical and effective’ form (para 55). Therefore, for a situation to be compatible with the Charter, states parties are obliged to: adopt the necessary legal, financial and operational means of ensuring steady progress towards achieving the goals set out in the Charter; maintain meaningful statistics on needs, resources and results; undertake regular reviews of the impact of the strategies adopted; establish a timetable; and pay close attention to the impact of the policies adopted on each of the categories of persons concerned, particularly the most vulnerable (para 56).
Enforcement of the Decision and Outcomes:
France had taken measures to bring the situation into conformity with the revised Charter. The Resolution stated that France undertook to follow up these measures by taking into account the Committee’s findings, namely by implementing Act No.2007-290 of March 5th2007 on the enforceable right to housing. While a justiciable right to housing was enacted in France prior to the complaint, under Act No. 2007-290, subsequent housing laws have not been oriented towards the resolution of the deficiencies identified by the Committee. The decision has been employed by housing rights advocates in applications to district and national courts while some local authorities have used it in their strategic guidelines and budget discussions with central government.
Significance of the Case:
This decision is significant due to the Committee’s extensive definition of the nature and extent of the housing rights obligations of those European States that have ratified Article 31 of the RESC. It provides a valuable guide to evaluate housing systems from a human rights perspective. Notably, the Committee used the ICESCR as ‘a key source of interpretation’ of Article 31, as well as the UN Committee on Economic, Social and Cultural Rights’ General Comments No.4 and 7 and the work of the UN Special Rapporteur on the Right to Adequate Housing. The Committee thus made a clear link between the scope of the right to housing under international human rights law and the right to housing under the Revised Charter. While the Committee has previously made extensive use of the ECHR and the jurisprudence of the European Court of Human Rights in its housing rights decisions, the same has not been true with regard to the work of the UN ESCR Committee.
Article 31 of Revised European Social Charter:
Previously the Charter did not provide for individual complaints but later on it was revised. Under the 1995 Additional Protocol providing for a system of Collective Complaints which came into force in 1998, complaints of violations of the Charter may be lodged with the European Committee Social Rights. ESC has defined the right to affordable housing in Article 31(4) which the Covenant has failed to define. Majority of cases under ESC were Right to Housing cases as compared to other cases.
The General Comment No 4 of 1991 by CESCR on Right to adequate housing underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute “adequate housing” for the purposes of the Covenant. Such as,
(a) Legal security of tenure.
(b) Availability of services, materials, facilities and infrastructure.
(c) Affordability.
(d) Habitability.
(e) Accessibility.
(f) Location.
(g) Cultural adequacy.
Moreover, in General Comment No. 4 (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirements of the Covenant. It is vey textual approach. It could be seen as what committee thinks but it is not a definition of adequate housing. But it is very influential for progressive realization. It is a reference point. It does not provide an individual complaint mechanism.
The General Comment 7 of CESCR also talks about the security of tenure and forced evictions.
Indian Supreme Court & Olga Tellius Case
During the 1970’s and 80’s, the Supreme Court of India engaged in a phase of strong judicial activism whereby several socio-economic rights in Part IV of the Constitution, that were previously thought to be unenforceable, were given legal force by bringing them within the sphere of the Fundamental Rights. Hence, while the Indian State was previously only under the negative duty not to interfere with the life or liberty of an individual without the sanction of law, activist judges of the Supreme Court now imposed a positive obligation to take steps for ensuring to the individual a better enjoyment of life and dignity.
One of the first and most important housing rights cases to go up to the Supreme Court in India was Olga Tellis in 1985. This case, for the first time, held that the Right to livelihood and shelter as being an important component of the Right to Life. This public interest litigation was filed on behalf of the pavement dwellers of Bombay city in the Bombay High Court.
The Petitioners argued that they could not be evicted from their squalid shelters without being offered alternative accommodation. They told the court that they chose a pavement or slum to live in only because it was nearest to their place of work, and that evicting them from the pavements would result in depriving them of their livelihood. The Petitioners (living in around more than 10,000 hutments) were to be evicted under Sections 312 to 314 of the Bombay Municipal Corporation Act, (BMC Act) which empowered the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access.
The judgment given by the Supreme Court in this case, for the first time, expanded the Right to Life guaranteed under Article 21 of the Indian Constitution to be wide enough to include within its scope, the right to livelihood which was translated in this context to mean the right to be allowed to remain on the pavements. A major expansion of Article 21 had been made by the Supreme Court in earlier cases9, but those expansions accorded rights mostly from the realm of civil and political rights such as the right to privacy, the right to speedy justice, and legal aid and never before was Article 21 interpreted to include social and economic rights such as the right to adequate shelter and livelihood.
The Jurisprudence was further developed in:
In Chameli Singh v. State of U.P. (1996) 2 SCC 549, this Court interpreted Article 21 in the following words:-
“Right to live guaranteed in any Civilized society implies the right to food, water, decent environment education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb.”
A Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. In para 8 it has been held thus: (SCC pp. 555-56)
“In any organized society, right to live as a human being is not ensured by meeting only the animal need of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions, which inhibit his growth. All human rights are designed to achieve this object. Right to live guarantee in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.”
Emphasizing further on the right to shelter, the Court in this case held that,
“Shelter for a human being, therefore, is not a mere protection of his life and limb. It is however 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 one’s 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.
As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organized civic community one should have permanent shelter so as to a physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultural being. Want of decent residence, therefore, frustrate the very object of the constitutional animation of right to equity, economic justice, fundamental right to residence, dignity of person and right to live itself.”
Despite this judgment Indian Jurisprudence is still unstable as even in Singh case the court does not provide long term answer. But, Article 21 provides “procedure established by law”, that state can take right to housing/evict somebody but in compliance with procedure. So, there are some procedural guarantees in Indian Constitution.
Bringing action for violation of Right to Housing in the Realm of Civil & Political Rights:
When we talk about bring an action for violation of Right to Housing under the realm of Civil & Political Rights, it creates a sense of strong enforceability and obligation as actions under Civil & Political rights are easily enforceable. A lot of people from Europe has brought actions under Article 8 of ECHR and got remedies. Moreover, under Civil & Political Rights framework, it is the procedure that would be looked at rather than the negative aspects of housing. If state is evicting you arbitrarily, you can bring a claim under Civil & Political Rights to provide you with housing.
Conclusion
Although, the courts have interfered in Right to Housing but Right of Individual to get remedy is still in question. The courts have mostly given Community Judgments rather than Individualistic. But, the standards of consultation in Indian Constitution are really impressive and admirable. Some commentators have argued that Committee while giving General Comments have to be cautious but the thing is what gains could we have even if the committee becomes more cautious. This is a weak argument.
