The International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted in 1966 is a multi-party treaty, ratified by India in 1976.
India being a country that adopts the principle of ‘dualism’, the ICESCR is not enforceable straightway. However, with the enactment of the Protection of Human Rights Act, 1993 (PHRA), and in particular Section 2 (f) thereof,[1] the ICESCR is one of the human rights covenants recognised by the Indian Parliament to be enforceable. Consequently, the obligations under the said covenant are enforceable in India.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Under Article 2(1) of the ICESCR, each State party has undertaken to take steps, ―individually and through international assistance and cooperation, especially economic and technical to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
Under Article 2(2), ICESCR every State party, including India, has undertaken to guarantee ―that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 11 (1) ICESCR, which is immediately relevant for the present purposes, reads as under:
“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and 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 cooperation based on free consent.”
Committee on Economic, Social and Cultural Rights (CESCR),
The Committee on Economic, Social and Cultural Rights (CESCR), a body of experts formed by the Economic and Social Council to assist it in the consideration of the reports submitted by the State parties, has produced ‘General Comments’ which explain in some detail the substantive and procedural aspects of the ICESCR. Two of these are relevant for the present purposes.
General Comment No. 4
General Comment No. 4 is on the ‘Right to Adequate Housing’ and was adopted at the Sixth Session of the CESCR on 13th December, 1991.
Paragraph 7 of General Comment No. 4 expresses the view of the CESCR that: ―
“The right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity. This is appropriate for at least two reasons. In the first place, the right to housing is integrally linked to other human rights and to the fundamental principles upon which the Covenant is premised.
This “the inherent dignity of the human person” from which the rights in the Covenant are said to derive requires that the term “housing” be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all persons irrespective of income or access to economic resources. Secondly, the reference in article 11 (1) must be read as referring not just to housing but to adequate housing.”
In terms of General Comment 4, among the aspects of the right to adequate housing were:
(i) legal security of tenure
(ii) availability of services and materials, facilities and infrastructure
(iii) affordability
(iv) habitability
(v) accessibility
(vi) location and
(vii) cultural adequacy.
The CESCR emphasised that the right to adequate housing cannot be viewed in isolation from other human rights contained in the two international covenants i.e. the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR.
Emphasising the indivisibility of rights it observed:
“the full enjoyment of other rights – such as the right to freedom of expression, the right to freedom of association (such as for tenants and other community-based groups), the right to freedom of residence and the right to participate in public decision-making – is indispensable if the right to adequate housing is to be realized and maintained by all groups in society.
Similarly, the right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence constitutes a very important dimension in defining the right to adequate housing.[2]
The CESCR identified the steps to be taken immediately and underscored that the State parties “must give due priority to those social groups living in unfavourable conditions by giving them particular considerations”. Among the steps that each party was expected to take was to adopt ‘a national housing strategy’ which should reflect:
“Extensive genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives. Furthermore, steps should be taken to ensure coordination between ministries and regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy, etc.) with the obligations under article 11 of the Covenant.”
What General Comment No. 4 emphasises is that there should be coordination between all ministries and local authorities in order to reconcile the related policies with the obligation under Article 11 of the ICESCR. Among the remedies that Article 11 of the ICESCR envisages is the provision of “legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions.”
They would also include “legal procedures seeking compensation following an illegal eviction, complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance and racial or other forms of discrimination.”
General Comment No. 7
Specific to the issue of ‘forced evictions’, the CESCR produced General Comment No. 7 in their 16th Session in 1997. The CESCR took note of the fact that the expression ‘forced evictions’ seeks to convey ‘a sense of arbitrariness and of illegality’.
It pointed out that to many observers, however,
“the reference to “forced evictions” is a tautology, while others have criticized the expression “illegal evictions” on the ground that it assumes that the relevant law provides adequate protection of the right to housing and conforms with the Covenant, which is by no means always the case. Similarly, it has been suggested that the term “unfair evictions” is even more subjective by virtue of its failure to refer to any legal framework at all.”
The CESCR, therefore, chose to define the expression ‘forced evictions’ as
“the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”
The CESCR added that “the prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights.”
Paragraph 13 of General Comment 7 reads as under: ―
“13. States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders.
States parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. In this respect, it is pertinent to recall article 2.3 of the International Covenant on Civil and Political Rights, which requires States parties to ensure “an effective remedy” for persons whose rights have been violated and the obligation upon the “competent authorities (to) enforce such remedies when granted”.
The procedural protections identified by the CESCR as being applicable in situations of forced evictions include: ―
(a) an opportunity for genuine consultation with those affected;
(b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;
(d) especially where groups of people are involved, government officials or their representatives to be present during an eviction;
(e) all persons carrying out the eviction to be properly identified;
(f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;
(g) provision of legal remedies; and provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.[3]
The provisions of the ICESCR have been noticed in some of the early decisions of the Supreme Court of India on the right to shelter. 9
Source
Ajay Makan v. Union of India (2019)
[1] Section 2 (f) PHRA defines “International Covenants” to mean ―the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social and Cultural
Rights adopted by the General Assembly of the United Nations on the 16th December, 1966.
[2] 6UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.4:
The Right to Adequate Housing, (Art. 11 (1) of the Covenant), 13 December 1991, para 9
[3] There are other international covenants, ratified by India, which touch upon the right to housing of children and women. Article 27 (3) of the Convention on the Rights of Child which calls on state parties to assist parents and guardians in providing the child with proper food, clothing and housing and Article 16 (1) which protects the child from unlawful or arbitrary interference with his or her privacy, family, home or correspondence. Also Article 16 of the Convention on Elimination of Discrimination Against Women (CEDAW) speaks of the State‘s obligation to ensure equality of access for both men and women to property rights of ownership and administration