Chapter 1: Introduction
1.1 The Right to Housing
1.2 Housing need in India
1.3 The Research Problem
1.3.1 Slum Rehabilitation Programme and Housing Rights of the slum dwellers in Mumbai
1.4.1 Research Method
1.4.2 Hypothesis of the study
1.4.3 Tools of Data Collection
1.4.4 Sampling Techniques
1.4.5 Interview Components
1.4.6 Mode of analysis of data
1.5 Overview of the study
Chapter 2: Housing and Housing Rights: Theoretical Perspectives and Legal Issues 19 -
2.1 Housing: Rationale of the Rights Based Approach
2.1.1 The liberal Approach
2.1.2 The Marxist Approach
2.1.3 The Rights Based Approach
2.1.4 Ideas of Max Weber and Jurgen Habermas on legitimacy and the moral dimension of law
2.2 Legal Issues
2.2.1 International Covenants
2.2.2 India’s Position Vis a Vis the International Covenants
2.2.3 Security of Tenure
2.2.4 Supreme Court of India on Housing Rights
2.3 Laws related to tackle the housing crisis in India
2.3.1 Urban Land Ceiling and Regulation Act (ULCRA), 1976
2.3.2 Rent Control Acts
Chapter 3: Violation of Housing Rights
3.1 Housing rights violation in Asia
3.1.1 The case of Hong Kong
3.1.2 The case of Indonesia
3.2 Housing rights violation in India
3.2.1 The case of Indore
3.2.2 The case of Mumbai
Chapter 4: Housing and Housing Rights: State, Market and Civil Society Initiatives
4.1 Government initiatives in various countries
4.2 Government initiatives in India
4.2.1 Housing as envisaged in the five year plans
4.2.2 Housing policies in India
4.2.3 Case of HUDCO (Housing and Urban Development Corporation)
4.2.4 Housing Finance in India
4.3 Market initiatives and housing
4.3.1 Market Innovation- an international evidence
4.3.2 Market innovation in India
4.4 Self Help approaches and Housing
4.4.1 International Evidence
4.4.2 Self help housing in India
Chapter 5: Slum Rehabilitation Policy in Mumbai
5.1 Brief background of the housing situation in Mumbai
5.1.1 Evolution of the Slum Rehabilitation Policy
5.1.2 Slum Rehabilitation Schemes
5.1.3 The Slum Rehabilitation Authority (SRA)
Chapter 6: Profile of the Slum and Sample
6.1 Case Study one: Saiwadi, Andheri East
6.1.1 The Developer implementing the Slum Rehabilitation Programme in Saiwadi
6.1.2 Profile of the Sample
6.2 Case Study two: Bharat Janta, Dharavi
6.2.1 The Developer implementing the Slum Rehabilitation Programme in Bharat Janta
6.2.2 Profile of the Sample
Chapter 7: Slum Rehabilitation Schemes in Saiwadi, Andheri East and Bharat Janta, Dharavi
7.1 Case Study one: Slum Rehabilitation in Saiwadi
7.1.1 Historical Background
7.1.2 The Organization
7.1.3 The Process of Implementation
7.1.4 Impact of Rehabilitation on the slum dwellers
7.2 Case Study two: Slum Rehabilitation in Bharat Janta Housing Cooperative, Dharavi
7.2.1 Historical Background
7.2.2 Organization and management
7.2.3 Process of Implementation
Chapter 8: Conclusions
Appendix I Interview Schedule for the Officials
Appendix II Interview Schedule for the Slum Dwellers Appendix III Formal and Informal Tenure Systems: Case of Delhi and Ahmedabad
Appendix IV Performance of Housing and Urban Development Corporation (HUDCO)
Appendix V Questionnaire for Demographic Profile of Respondents
List of Figures
Figure 5.1 Map showing Mumbai Metropolitan Region (after MMRDA,2005)
Figure 6.1 Location Plan of Akruti Neharika,sale component of Saiwadi
Figure 6.2 Location Map of Dharavi
Figure 7.1 A rehab building at Saiwadi
List of Tables
Table 3.1 Tribunal Report notes: chronology of events
Table 5.1 Comparison between the SRD and the SRA
Table5.2 Results so far
Table 6.1 Comparison of the Samples
Table 7.1 Description of SRS in Saiwadi
Table 7.2 Status of the Saleable Component
Table 7. 3 Years of occupation of the rehab buildings
Table 7.4 Comparison in the costs of shelter pre and post rehabilitation
Table7. 5 Project summary of Bharat Janta
Table 7.6 Important milestones in the SRS of Bharat Janta
List of Abbreviations
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Chapter 1 Introduction
1.1 The present study analyses the problem of housing of the slum dwellers in Mumbai using the rights based approach. A rights based approach to development is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. Essentially, a rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development. The norms and standards are those contained in the wealth of international treaties and declarations. The principles include equality and equity, accountability, empowerment and participation. A rights- based approach to development includes the following elements: express linkage to rights, accountability, empowerment, participation and discrimination 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.1
Many authors have contributed to the rights based approach. Arjun Sengupta is one of them. The present study derives its theoretical framework primarily, from the ideas of Arjun Sengupta (2001) on the right to development. The question of housing rights for the poor stands in the midst of a plethora of legal conventions. 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).2 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.
In the Indian context, the National Campaign for Housing Rights prepared the draft approach paper towards the peoples’ Bill of housing rights way back in 1987 (The Right to Housing, 1994). It placed the right to stay and to be resettled under the Section - Areas of Statutory Provision. Under this section the bill read that in the context of increasing amount of so called unauthorized settlement, which has been forced upon by the uncontrolled market economy, it was proposed that a new “civic rights” be introduced. This would be right to recognize shelter and all other civic services at the location where one is dwelling or alternatively the mandatory right to resettlement and all other similar services at a suitable location. Under this section the draft also added the subsection of Prevention of further homelessness.
Following the international convention, the National Campaign on Housing Rights defined the right to housing as follows: “The right to adequate housing is the right of every woman, man and child to a place to live in security and dignity.”(1987). This definition clarifies that the right to housing is a multifaceted right and must be seen along with a set of congruent rights, like right to information and the right to a safe environment, right to participation in the implementation of housing projects. 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 encircle the concept of housing rights--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.
For the purpose of this study, the meaning of housing rights is not a literal translation in law or the fact that the State has to provide houses for one and all. The concept is derived from the rights based approach and 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. Though the concept of housing rights is more or less uniform, following the United Nations conventions; the actual translation of this right in the form of enabling policies is context specific. This is true even within India, where housing is treated as a state subject, under the List - II of the Seventh Schedule of the Constitution of India. The present study, therefore seeks to understand the implementation of the Slum Rehabilitation Schemes (hereafter SRS), designed specifically in the context of Mumbai. The study seeks to compare and contrast how the SRS are being implemented by two different institutions, namely a market player and a civil society organization, under the overall statutory guidelines of the Slum Rehabilitation Authority ( hereafter SRA), to realize the housing rights of the slum dwellers of Mumbai. The context specific implementation of the SRS is therefore being studied in the background of the rights based approach.
2.2 Housing need in India
According to the Global Report on Human Settlements 2001, compiled by the United Nations Centre for Human Settlements (HABITAT), in India rapid urbanization and the deteriorating financial conditions of the urban local bodies, coupled with an increase in urban poverty have resulted in inadequate provision of shelter, amenities and services in urban areas. In most Indian cities with population of more than one million, one in four inhabitants live in illegal settlements, which are growing twice as fast as the rest of the city. The percentage of households in designated slum settlements in Mumbai, Calcutta, and Ahmedabad ranges between 40 to 60 percent. Estimates of the percentage of the total urban population living in designated slum and squatter settlements vary between 20 and 25 percent. Around 350 million people are now estimated to be living in urban areas, suggesting that between 70 and 85 million people are in designated slum and squatter areas. Indian Government agencies estimate that: Housing stock in 1971 was estimated to be 93 million and the number of households in 1971 was 97.1 million. Housing stock in 1991 rose to 149.1 million and the number of households in 1991 also subsequently rose to 153.2 million. Therefore in the same period the housing deficit increased by 5.1 million units.
The Vision Mumbai Report (2001) laid out that Mumbai needs to dramatically increase housing availability and affordability. At the lower end of the spectrum, there is a huge shortfall of affordable housing - 50-60 per cent of Mumbai’s population lives in slums - reflecting the high price of housing in the city. At the higher end, residential and commercial real estate is extremely expensive, yet lacking in quality (dilapidated buildings, lack of green spaces and parking facilities, inadequate infrastructure). As the report put it, “In Mumbai, you pay first world prices for third world amenities and services.” In addition, the rental housing market is both illiquid and unaffordable. Rental housing (as a percentage of total housing) is 5-10 per cent as compared to international benchmarks of 40-50 per cent. The average monthly household income for the bottom 30 per cent of Mumbai’s population is Rs. 6,000 or less and, for this segment, affordable housing should mean spending no more than Rs. 750-1,500 per month on rental housing, or purchasing houses at a price below Rs. 1.5 lakh at current prices.
1.3 The Research Problem
Though the concept of housing rights is more or less uniform, following the United Nations Conventions, the actual translation of this right in the form of enabling policies, is context specific. Therefore, the present study, with the help of an empirical analysis seeks to understand the concept as practiced in reality, through implementation of a particular programme, catering to a particular segment of population, namely the slum dwellers of Mumbai.
1.3.1 Slum Rehabilitation Programme and Housing Rights of the slum dwellers in Mumbai
The Slum Rehabilitation Programme is specific to the socio-economic- political context of Mumbai. Mumbai, the commercial capital of India and capital of the state of Maharashtra, is an island of 437 sq. kilometers area and home to a population of more than 11 million people. Of this, 6 million people, live in slums, known in the local language as chawls, under subhuman conditions. They present a strong case of housing right violation. The contribution of slum dwellers to the city' s economy - as industrial workers, construction labour, domestic help, rag-pickers and in a whole range of petty trades like vegetable and fruit-sellers - is acknowledged by the administration and the public.
Slums have come up on private lands (50%), state government lands (25%), municipal corporation lands (20%), central government lands and housing board lands (5%). These slum pockets spread throughout Greater Mumbai, occupy prime real estate, have developed infrastructure in the neighbourhoods and are usually located adjacent to developed housing colonies and industries. The government of
Maharashtra and the municipal corporation of Greater Mumbai, till the 1970s, sought
to demolish slums and clear the land of encroachments. It soon became apparent that this policy did not work because people would simply re-build their huts after some time at the same location or, if there was too much harassment, shift to another unoccupied piece of land nearby. This is because Mumbai is a thriving industrial centre that attracts migrants from all over India in search of livelihood. It is a bustling metropolis humming with ceaseless activity even though the profile of its industry has become much leaner now and service industries have proliferated in leaps and bounds.
Slums have served as vote banks, but have also faced ruthless demolitions from time to time. The most recent demolition drive was that undertaken by the Congress-NCP led Democratic Front government in Maharashtra. Launched in the beginning of 2005, “Operation Clearance” brought down over 85,000 slums that came up after 1, January 1995, which is the cut off date for regularsing illegal slums in Mumbai. The demolition drive, which also won the support of the political parties in opposition, was prompted by the need to preserve Mumbai’s already fragile balance between its population and the amenities that are available, (The Times of India, [Mumbai Edition] 19th February 2005). The article also quoted the Chief Minister, who said to have remarked that such harsh measures are in the larger interests of the city. Margaret Alva, the General Secretary of the All India Congress Committee (AICC) and In-Charge of Maharashtra affairs is said to have said that the ruling UPA government at the Centre and the Congress leadership was committed to beautify the city of Mumbai but there is no need to drive out the poor from their homes to achieve this goal (The Times of India [Mumbai Edition] 16th February 2005). After two months, the demolition drive was called off after facing huge protests from slum dwellers, social activists like Medha Patkar and various NGOs.It was also declared by the government of Maharashtra that the cut off year for the regulation of illegal slums would be extended to the year 2000 (The Times of India [Mumbai Edition] 17th February 2005, The Economic Times [Mumbai Edition] 19th February 2005).
The ensuing debate on the right to housing of the slum dwellers in Mumbai as their basic human right provided a major impetus for the present study. The debate was further fuelled by the comments of Justice Chandrachud while hearing the state’s plea for relaxing the cut off dates from 1995 to 2000 to make all slum dwellers eligible for free housing. The state wanted to relocate these slum dwellers, who have been evicted from various places in the city during the above demolition drive and sought the Court’s permission for the rehabilitation. The judge noted that housing is an individual’s fundamental human right and questioned whether one could deprive some people of housing merely because what they had built had come into occupation after a state cut- off date irrespective of their need and circumstances. The judge also called to treat the issue not as ad hoc for relocating 5000 oustees but evolve a comprehensive policy following discussions with other civil society organizations, namely NGOs (The Times of India [Mumbai Edition] 1st June 2005).
In the background of the above debate, the present study seeks to contribute by providing a better understanding of the Slum Rehabilitation Programme, presently being implemented to realize the housing rights of the slum dwellers in Mumbai. Though it was formulated under a specific political regime in Maharashtra, its purpose and implementation has outlived that regime. In many ways the SRS is a negotiation between citizens, (in this case slum dwellers of all the slum areas within the Brihan Mumbai Municipal Corporation and sixty other towns in the state of Maharashtra) and the government. The SRA acts as a facilitator, fulfilling the statutory obligations while the implementation is solely left with the developer and the beneficiaries. The developer can be an NGO, a private developer or a Slum Dwellers society. In many ways the SRS is enabling, grounded on the principles of the right to housing for the slum dwellers of Mumbai
For those slum dwellers that fall outside the scope of the formal urban housing market, housing as a basic need assumes importance. When the need question pervades over the commodity question; the question of right logically follows. And when the need question reaches extraordinary proportions; intervention by the government and non-government organizations becomes imperative. The present study revolves around the following questions:
3 Can a rights based approach be applied to the housing issue?
4 Where does the question of housing right lie in the interface of the international, national and local legal orders?
5 How successful is the concept in India to develop a sui generis, employing indigenous institution, namely the state, market and civil society bodies; to meet the specific requirements of the housing crisis in Mumbai?
In the backdrop of the above questions, the present study has the following objectives:
a) To study the functioning of the SRA, Mumbai, as an institution which helps to realize the basic human right to Adequate Shelter of the people who live in urban slums.
b) To study in particular the role of a non government organization, (NGO) called Society for the Promotion of Area Resource Centre (hereafter SPARC) and a private sector company, Akruti Nirman Limited, both of which are working with the SRA to realize the right to shelter of the slum dwellers in Mumbai.
The study seeks to compare and contrast the implementation of the SRS in two slum sites of Mumbai, namely the Bharat Janta Housing Scheme in Dharavi, being implemented by SPARC and the Saiwadi Housing Scheme in Andheri, being implemented by Akruti Nirman Limited. Both the schemes are being implemented under the overall statutory guidelines laid out by the SRA. The SRA is an autonomous body, of the government of Maharashtra, which serves as a planning authority for all slum areas in Greater Mumbai and facilitates the slum rehabilitation schemes. It has jurisdiction over all the slum areas within the Brihan Mumbai Municipal Corporation and also those of sixty other towns in the state of Maharashtra. These two sites have been deliberately chosen, to delineate the differences in the implementation process of SRS by different institutions, namely a market player and a civil society organization and assess the extent to which the housing rights of the slum dwellers in each of these sites are met.
The present study is an interpretative, exploratory study using ethnographic and survey research methods. Interpretive studies3 generally attempt to understand phenomena through the meanings that people assign to them. Interpretive researchers start out with the assumption that access to reality (given or socially constructed) is only through social constructions such as language, consciousness and shared meanings.
1.4.1 Research Method
The research method used for this study is the case study method. Yin (2002) defines the scope of a case study as an empirical inquiry that:
6 investigates a contemporary phenomenon within its real-life context, especially when
7 the boundaries between phenomenon and context are not clearly evident
8 typically, a case study researcher uses interviews and documentary materials
first and foremost. These modes of analysis are different approaches to gathering, analyzing and interpreting qualitative data. The common thread is that all qualitative modes of analysis are concerned primarily with textual analysis (whether verbal or written).
1.4.2 Hypothesis of the Study
Pilot studies were carried out between November 2004 and January 2005 to finalize the organizations and the slums on which the empirical work would be conducted. Based on the findings of the pilot studies, that mostly comprised discussions with the officials of the SRA and focused group discussions with the slum dwellers, the following hypothesis was formulated:
There are differences in the process of implementation of SRS in Mumbai by an NGO and a private developer. These differences are in terms of: physical profile, social profile, process of implementation, organization and management, problems, coping strategies and lessons learnt. The study aimed to test this hypothesis with the help of empirical work.
1.4.3 Tools of Data Collection
Primary data were collected from the officials of SPARC and Akruti Nirman Limited and from the two SRS project sites in the slums of Saiwadi and Dharavi. Semi- structured interviews were conducted to collect the primary data. Fieldwork was carried out between February 2005 to April 2005. Secondary data were collected from the official records of the three organizations, namely, SRA, SPARC and Akruti Nirman Limited. Secondary data were also collected between December and March 2005.
1.4.4 Sampling Techniques
Two different sampling techniques have been used to interview the two sets of samples, namely the officials and the slum dwellers. Random sampling has been used to select the respondents at Saiwadi and Dharavi. Initially a sample size of 30 was chosen as it was representative of the universe. With the availability of more respondents, the sample rise rose to 34 in each of the slum site which summed up to a total of 68 respondents. Since the present study required specific data pertaining to the functions of the SRA and the implementation of the SRS, snowball sampling was used to conduct the interviews with the officials of the three organizations. Snowball sampling helped to reach the key informants whose information led to subsequent interviews with other key informants involved with the SRS in some way or the other. In all, the number of officials interviewed from all the three organizations was 10.
1.4.5 Interview Components
The officials of the organizations, namely the Akruti Nirman Private Limited and SPARC were interviewed on the major issues concerning the implementation of the SRS - which particular scheme was implemented and why, how was it initiated, what were the incentives the developers got in return, how many people were rehabilitated , how many tenements were built, what were the major obstacles they faced while implementing the projects, how did they deal with them, what they attribute as the reasons for their success or failure, what according to them are the perceptions of the people who have been rehabilitated (See Appendix I). The slum dwellers of both Bharat Janata Cooperative Housing project (Dharavi) and the Saiwadi Project (Andheri) were interviewed on issues like participation, problems and coping strategies at each stage of the implementation process and post rehabilitation among others (See Appendix II).
1.4.6 Mode of analysis of Data
The collected data have been analyzed and conceptualized to derive at core and axial categories (Strauss, 1987) that assessed the implementation and impact of the SRS through the meanings attributed by the respondents. A core category is one that is central to the integration of the theory.Axial categories are derived from the intense analysis done around one core category at a time, in terms of the paradigm items (conditions, consequences and so forth). These in turn helped to compare and contrast the implementation of SRS at the two different slum sites by two different players and enabled an overall assessment of the SRS with regard to realization of the housing rights to a for the slum dwellers in Mumbai .
1.5 Overview of the study
Chapter 2 deals with the review of literature concerning housing and housing rights, in general and also with specific reference to India. It discusses the various theoretical strands like the Liberal and Marxist schools and provides the rationale for the rights based approach to study the housing issue of the urban poor. It also discusses the various legal issues like the International Covenants that elucidate on housing rights and India’s position on the same, judgments of the Supreme of India on housing rights, laws related to housing in India like the Rent Control Acts, the Urban Land Ceiling and Regulation Act, 1976.
Chapter 3 brings out the other side of housing rights violation by means of evictions with the help of case studies in Asia and India. Chapter 4 deals with various government, market and self help initiatives to tackle the housing crisis, both at the international and national levels. Housing as envisaged in India in successive Five Year Plans and housing policies and slum policy have been discussed. Other government initiatives like HUDCO have been discussed. Besides, market innovations like land sharing with empirical evidence as well as various self-help approaches to housing have been discussed.
Chapter 5 is based on a detailed study of the Slum Rehabilitation Schemes as spelled out in the government statutes and the information gathered from the officials of the SRA.It discusses the various Slum Policies in the past that paved the way to the one that is operational now .Chapter 6 describes the profile of the slums (Bharat Janta and Saiwadi), and the organizations involved in the implementation of the SRS there (SPARC and Akruti Nirman Ltd). The samples of respondents for both the case studies have also been described. Chapter 7 compiles the findings of the case studies, giving a historical background and then describing the process of implementation of the SRS. Chapter 8 concludes the study in the background of its theoretical approach and objectives.
To sum up, housing rights are an important means of providing citizens with legal procedures and mechanisms designed to ensure the implementation of the right to adequate housing and the receipt of compensation in the event of violations. Further, viewing housing through the looking glass of human rights creates a systematic, common and universally applicable framework for developing appropriate legal and other policy measures leading to the full realization of housing rights. Most actors have now understood that the pursuit of housing rights as human rights promotes good governance, governmental accountability, transparency, democratic decision-making, popular participation and international cooperation.
This section defines various concepts that have been used throughout the study. Concepts like State, Market, Civil Society and Non government organization are used in common parlance and their meanings are often misunderstood. Therefore it is useful to define and understand the meanings of these concepts, in the sense they are used in this study.
State - A state is an organized political community occupying a definite territory, having an organized government, and possessing internal and external sovereignty. The State has the monopoly of the legitimate use of force within a country.4
Market Player- A market is a mechanism which allows people to trade, normally governed by the theory of supply and demand, thereby allocating resources through a price mechanism and bid and ask matching so that those willing to pay a price for something meet those willing to sell for it. By this definition, a private construction company like the Akruti Nirman Ltd. can be said to be a market player in the area of urban housing.5
Civil Society- Civil society can be seen as the arena in which people come together to pursue the interests they hold in common - not for profit or the exercise of political power, but because they care enough about something to take collective action. In this sense, all organizations and associations between family and state are part of civil society, except firms: religious and professional organizations, labour unions, the media, grassroots associations, NGOs of different kinds, and many others. The profile of civil society is context specific and can be classified by sector, focus, origins, scale, level of formality, values-base and different theoretical perspectives. The World Bank differentiates civil society organizations according to the following five functions6:
8.1 representation (organizations which aggregate citizen voice)
8.2 advocacy and technical inputs (organizations which provide information and advice, and lobby on particular issues)
8.3 capacity-building (organizations that provide support to other CSOs, including funding)
8.4 service-delivery (organizations that implement development projects or provide services)
8.5 social functions (organizations that foster collective recreational activities).
In the present study the National Slum Dwellers Federation (NSDF), the Dharavi Vikas Samiti (DVS), can be classified as civil society organizations performing the functions of representation (organizations which aggregate citizen voice) and advocacy and technical inputs(organizations which provide information and advice, and lobby on particular issues) .
Non governmnt organization- A non-governmental organization (NGO) is an organization which is independent from the government. Although the definition can technically include for-profit corporations, the term is generally restricted to social and cultural groups, whose primary goal is not commercial.7
By this definition, SPARC is an NGO involved in the following functions described above, namely, capacity-building (organizations that provide support to other CSOs, including funding) and service-delivery (organizations that implement development projects or provide services).
Chapter 2 Housing and Housing Rights: Theoretical Perspectives and Legal Issues
2.1 Housing: Rationale of the Rights Based Approach
This chapter reviews the various theoretical strands on the housing issue like the Liberal School as advocated by John Turner (Peter and Linden 1988) and the Marxist School (Frederich Engels, 1872; Amitabh Kundu, 1988; Arun Kumar, 1989; and Tara S Nair 1999). In this theoretical backdrop, the rationale of the rights based approach is laid out based on the ideas of Arjun Sengupta (2001) with philosophical underpinnings borrowed from Habermas (1996). The chapter also discusses the various legal issues concerning housing and housing rights in general, with special reference to India. The international covenants on housing rights, importance of the security of tenure and India’s position with regard to these, significant judgments of the Supreme Court of India on housing rights, and specific laws pertaining to housing like the Rent Control Acts and the Urban Land Ceiling and Regulation Act, 1976, have been discussed. This review of literature helps one to answer the question as to where the concept of housing rights lie in the interface of international, national and local legal orders. The review of literature on the housing crisis for the urban poor has revealed that there are primarily two strands of theoretical thinking - the Marxist School and the Liberal School.
2.1.1 The Liberal School
One of the best-known advocates of the Liberal School is John Turner (Joseph Gugler edited, 1988). His key ideas are summarized as follows:
9 Housing for Turner is not just a shelter but a process, an activity. Therefore, the house should not be seen simply in terms of its physical characteristics of what it is, but also in terms of what it does its meaning for those who use it.
10 The main components of the housing process have to be left to the users because large organizations, state or municipality, always have to standardize procedures and products and thus fail to cater to the majority of the individuals and their changing needs and priorities. Users necessarily need not build their own dwellings but they should be given an opportunity to judge and decide about housing, individually or through decentralized local institutions.
11 The government must play an enabling role that of providing basic services and maintenance like roads and sewerage treatment plants. It should also formulate prospective laws that define the limits of what individuals and local institutions may do. Most importantly, the government has to provide and protect access to the elements of the housing process for the users. These are land, laws, building materials, tools, credit and know how.
Like Turner, Paul S. Grogan and Tony Proscio (2002) did an optimistic appraisal of the accomplishments of community development within American cities in their work Comeback Cities: a Blueprint for Urban Neighborhood Revival. The authors are generally wary of “big government” efforts and accomplishments in all these areas of community redevelopment over the years. The failure of federal programs in the areas of housing, education, welfare, public order, and “business as usual” convinces them that the ideologically and politically driven efforts of Democratic and Republican administrations need to be replaced by market-sensitive, locally initiated, community-focused, and ideologically neutral solutions that mirror the successful experiences of Community Development Programmes. The authors are obviously proponents of market solutions, deregulated community institutions, and local initiative. They applaud local governments and mayors of cities with the foresight to respond creatively to opportunities and harness the strengths of local human resources, community organizations, and institutions.
The Marxist School
Rethinking the concept of development, the Marxist School of thought delves into the basic causes of poverty. To them, the capitalist mode of production is the basic cause of underdevelopment. One of Turner’s important Marxist critics is Rod Burgess, for whom Turner’s proposals are of little appeal since they do not question the economic and social structure shaped by capitalism. He maintains that what Turner proposes boils down to “an economic and ideological means necessary for the maintenance of the status quo and the general conditions of capitalist development.” His arguments are summarized as:
12 By separating and opposing the use value and market value, Turner fails to appreciate their dialectic interrelations. Since commercial products and labour are invested in the self-help house, they cannot fail to assume a value in the capitalist market. Turner does not deny this, but wrongly assumes that use values dominate. This cannot be or remain true since constant expansion of the sphere of commodity production for capitalist exchange is a condition of capitalist development.
13 Again, it is said that Turner depoliticizes both the housing problem and the state because in his ideas of the government’s role, there is no mention of imperialism. A class based analysis would not overlook this. Turner underplays the fact that “ the government’s function of maintaining the general conditions for the reproduction of capital will always prevent it from intervening against the interests of capital ; it cannot reasonably be expected to legislate against the interests on which it depends and serves.”
Frederich Engels has discussed the housing crisis in urban areas way back in 1844 in The Housing Question. Here he goes on to say that the housing shortages are typically the creation of capitalist mode of production and can be solved by abolishing the same. According to Engels, all oppressed classes, in all epochs have suffered from housing shortages due to migration of people from rural to urban areas in search of employment, leading to colossal increase in rents and overcrowding. Exploitation occurs in the form of extraction of surplus from the worker, by making the worker work longer than is necessary in order to reproduce the price paid for the labour power. The surplus value produced by the worker is distributed among the capitalist class. Working people who have no property whatsoever primarily inhabit the great towns. The rent agreement also benefits the propertied class. The working class and sometimes the petty bourgeoisie have no choice but to give in to the dictates of the landowners. All this is the creation of the capitalist mode of production and hence calls for the abolition of the same by social revolution.
In a critical analysis of the Housing Policy of India 1988, Amitabh Kundu (1988) revisited the ideas of Engels that “the so called housing shortage” in our modern big cities is one of the innumerable smaller and secondary evils which results from the present day capitalist mode of production. Engels had emphasized again and again that the housing problem arises because of the maldistribution of existing dwelling units among people. It is indeed true that the housing situation for the poor has become critical in recent years. Kundu noted the occurrence of what he called “degenerated peripheralisation” which pushes the poor to the peripheries and neighbouring towns and villages. This is achieved through both markets mechanism and the market mechanism and the government programmes of resettlement under which sites and services are provided for the poor at respectable distances from the posh localities. The National Housing Policy has expressed a similar “a pious wish”, it recommends conferring tenurial rights on slum dwellers, improving residential environment for the poor, etc, while insisting on “affordable credit” and switch over from subsidy to loan. Kundu argued that the policy does not state explicitly anywhere the importance given to private builders and housing companies, although almost all the recommendations are likely to promote their growth.
In a similar vein, Arun Kumar (1989) also critiqued the National Housing Policy as it failed to articulate the interests of the deprived classes. There was no attempt to change the structure of the markets in order to strengthen the position of the weaker sections. He added that in a capitalist society with its basis in private property rights, these suggestions may be rejected and there would be a continued worsening of the housing situation of the property less.
Tara S.Nair (1999) argued that institutions like Housing Development and Finance Corporation (HDFC) and National Housing Bank (NHB) may have been able to attract sizeable amounts of individual resources to the housing sector but their contribution to total housing finance may be only about 10 percent. About three- fourths of the housing finance needs are met by informal sources including household savings and employee housing loans advanced by public and private agencies. He went on to say that the poor borrower cannot access funds from institutions like HDFC and NHB because the latter insist on considerable monthly household savings.
2.1.3 The Rights Based Approach
While the Liberal approach to the housing question emphasizes more on self- help and market led innovations, the Marxist approach dismisses all solutions based on the present capitalist mode of production. At this juncture, the rights based approach to housing, seems as a viable option. The present study derives its theoretical framework primarily from the ideas of Arjun Sengupta (2001), one of the advocates of the rights based approach. According to Sengupta, if development depends upon policy and not just in the spontaneous play of market forces, then any approach that facilitates, if not ensures, more than another the formulation, adoption and implementation of appropriate policies to realize the objectives of development would be regarded as superior. When development is seen as a human right, it obligates the authority both nationally and internationally, to fulfill their duties in delivering (or, in human rights language, promoting, securing, and protecting) that right in a country. The adoption of appropriate policies follows from that obligation. The rights based approach to development requires us to reexamine the ends and means of development. If improvement of well being of the people (in this case by attending to the slum dwellers’ basic need to housing), based on the enjoyment of rights and freedoms is the objective of development, economic growth alone would not be the end in itself. It can be one of the ends, and can also be a means to some other ends, when “well being” is equivalent to the realization of human rights. The right to development does not deny the importance of expansion of basic resources and the opportunities for development. But the manner in which they are realized have to be guided by the principles of equity and justice. The development process has to be participatory, in this sense.
The right to development emerged as a human right which integrated economic, social and cultural rights with civil and political rights in the manner that was envisaged at the beginning of the post World War II human rights movement. The first article of the text of the Declaration on the right to development succinctly puts forward the concept of the right to development. It states: The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in and contribute to and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized.
The Declaration on the right to development is a consensus document. It is the result of a paragraph- by - paragraph negotiation to settle on an agreed text which is not always very neat, focused, or non -ambivalent. But a textual analysis of the document as we have done supplemented by the discussions held at different fora at that time would clearly suggest the following four main propositions of the Declaration:
14 The right to development is a human right.
15 The human right to development is a right to a particular process of development in which all human rights and fundamental freedoms can be fully realized - which means that it combines all the rights enshrined in both the covenants and each of the rights has to be exercised with freedom.
16 The meaning of exercising these rights consistently with freedom implies free, effective and full participation of all the individuals concerned in the decision-making and the implementation of the process. Therefore the process must be transparent and accountable; individuals must have equal opportunity of access to the resources for development and receive fair distribution of the benefits of development and income.
17 Finally the right confers unequivocal obligation on duty holders: individuals in the community, states at the national level, and states at the international level. National states have the responsibility to help realize the process of development through appropriate development policies. Other states and international agencies have the obligation to cooperate with the national states to facilitate the realization of the process of development.
1 http://www.unhchr.ch/development/approaches-01.html accessed on 24/6/05.
2 Indian Peoples’ Tribunal on Environment and Housing Rights. April 1999.
3 Interpretive research does not predefine dependent and independent variables, but focuses on the full complexity of human sense making as the situation emerges (Kaplan and Maxwell, 1994).
4 http://en.wikipedia.org/wiki/State, 2005.
6 http://www.worldbank.org/participation/cas/CASCSO.htm, 2005.
7 http://en.wikipedia.org/wiki/Non governmental_organizations, 2005