Introduction
Since the time of the judgment in the case of Olga Tellis, the Supreme Court, this High Court and various other High Courts of this country [have] been talking about the right to shelter. [Has] this judicial activism, over a period of more than 40 years, … made any difference to the various Governments of different political parties? [Has] this discussion … brought around any change in the lives of [hundreds of thousands] homeless people? Unfortunately, the answer to both these questions is a big no.Footnote 1
India has attracted considerable attention in the field of comparative social rights theory, primarily due to the distinctive features of its legal system and the substantive influence of its Supreme Court. The Court’s activism remains a recurring theme in discussions of judicial supremacy and its impact on the separation of powers. Amidst the numerous judicial innovations that ensued in the post-Emergency era, the Supreme Court recognised the right to shelter as a functional extension of the rights to life and livelihood under Article 21 of the Constitution of India.Footnote 2 This interpretative effort aimed to give substantive effect to the unenforceable housing-related provisions in Part IV of the Constitution and to open courtrooms to slum dwellers, the homeless, and individuals facing eviction threats.Footnote 3 Shelter adjudication, in this sense, stands out as a notable example of the Court’s activist engagement with socio-economic rights: widely praised yet undeniably imperfect. Indeed, despite the Court’s commendable responsiveness to compelling issues of social and economic equality, empirical evidence on the distributive effects of social rights adjudication remains somewhat ambiguous,Footnote 4 and lingering doubts on the interpretative coherence and democratic legitimacy of the Court’s involvement in public interest litigation persist.Footnote 5
In this context, the excerpt from Vora Zakirhusain aptly emphasises the doctrinal uncertainties surrounding the practical significance of the right to shelter in India. In that specific case, the Gujarat High Court upheld the eviction of slum dwellers from government-owned railway land in Gandhinagar and dismissed their claim to alternative accommodation on the basis of their ineligibility under the applicable slum rehabilitation schemes in the State of Gujarat. The petitioners, who had resided in the area for approximately thirty years, challenged the fairness of their removal, supporting an interpretation of the constitutional right to shelter in line with international human rights law, and claiming that the enforceability of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in India substantiated the requirement for a preliminary judicial inquiry into the availability of alternative accommodation as a condition for lawful eviction.Footnote 6 The Court rebutted the argument, asserting that, under the Constitution, the prohibition of encroachments on public property presumptively prevails over any asserted right to shelter.Footnote 7 Accordingly, it held that the right to shelter becomes relevant only when legal rights over the occupied land have crystallised in favour of the encroachers, including the right to alternative accommodation, pursuant to relevant legislative or policy schemes. These legal rights, crucially, would include the right to alternative accommodation. In the Court’s view, the ‘mere’ right to shelter would not per se prevent individuals from being rendered shelterless following an eviction.
The interpretative outcomes in Vora Zakirhusain align closely with the Supreme Court’s settled approach to the adjudication of shelter claims, which falls within the broader ‘conditional social rights’ model described by Madhav Khosla.Footnote 8 In his seminal Making Social Rights Conditional, commenting on Olga Tellis,Footnote 9 Khosla argued that the apex court has upheld social rights only conditionally, and in response to the failure to fulfil legally binding obligations, as enshrined in applicable statutes or policies. Thus, the constitutional protection of the right to shelter is not systemic or aprioristic but strictly dependent on administrative failures. To further highlight the limitations of the ‘conditional social rights’ approach, Khosla contrasted the Indian model with ‘systemic’ forms of social rights protection, for which the South African Constitutional Court was presented as a paradigmatic example.
Overall, in the Supreme Court’s hermeneutic framework, the right to shelter remains torn between a formal fundamental rights status and an administrative substance,Footnote 10 and factually provides an empty vessel whose content depends entirely on applicable legislative and policy schemes. The application of this interpretative canon is straightforward and uncontroversial in Vora Zakirhusain. However, two major points of interest emerge from the decision. First, the Gujarat High Court forcefully distanced itself from a strand of High Court case law that had interpretatively expanded the right to shelter in a manner informed by the ICESCR – the outcome sought by the petitioners – also declining to take inspiration from South African jurisprudence, which the bench considered to be irreducibly foreign to India. Second, despite this interpretative closure, the Court nevertheless lamented the troublesome limitations of the conditional social rights model, insofar as it compels judges to presumptively approve the removal of informal dwellers and confines their role to verifying the procedural safeguards afforded under operational policy schemes in place.Footnote 11
This article expands on these two points and strives to delve deeper into the constitutional theory underpinning the right to shelter, particularly with regard to its unclear relationship with international human rights standards. These explanatory goals will be pursued by examining the line of High Court judgments criticised in Vora Zakirhusain, which, in part, challenge the Supreme Court’s established right to shelter hermeneutics while displaying some interpretative leniency towards the international right to adequate housing.
The remainder of the article follows a threefold structure. It begins by revisiting the Supreme Court’s shelter jurisprudence in the closing decades of the past millennium, elucidating the specifics of Madhav Khosla’s ‘conditional social rights’ model. This will provide the necessary background to contextualise the relevant High Court judicial pronouncements. To this end, the third section cross-examines the Indian approach to the right to shelter with the international human rights standards enshrined in the ICESCR. In the fourth and final section, the analysis delves into the coexistence of two antithetical rights – shelter and adequate housing – and assesses the feasibility of interpretative reliance on international human rights standards as a means to expand the normative reach of procedural fairness.
The Right to Shelter as an Inseparable Facet of the Rights to Life and Livelihood under Article 21
From the late 1970s, the Supreme Court of India embraced a sweeping and ideological approach to constitutional adjudication, discarding a formalist conception of the rule of law and openly engaging with questions of social justice. Prior to this period, the Court was largely perceived as an elitist institution that generally bowed to the country’s troubled political establishment; as the Emergency drew to a close, the judiciary desperately needed to regain legitimacy and popular support. A significant impetus for this transformative turn came from Chief Justice Prafullachandra Natwarlal Bhagwati, who authored a considerable number of ground-breaking judgments. Advancing a sociological critique of the procedural formalism inherited from British colonial rule, Chief Justice Bhagwati considered positivism to be a false myth deliberately fashioned to shield judges from public accountability. Instead, he propounded a theory of constitutionalism as ‘social activism’, according to which the Supreme Court could not ‘turn away from the claims and demands of social justice and still honour its claim to be a Court for all citizens of India’.Footnote 12 Notoriously, these views laid the groundwork for a lasting era of judicial activism in India.
The Supreme Court’s activism unfolded along two primary pathways. First, it overturned traditional understandings of the judicial function by expanding access to justice in public interest litigation beyond formalist constructions of locus standi, which had previously been tied exclusively to proprietary or financial interests in the outcome of fundamental rights disputes.Footnote 13 Accordingly, the Court relaxed standing rules,Footnote 14 appointed fact-finding commissions, and began crafting far-reaching remedies with ‘preventive, regulatory or even curative’ functions.Footnote 15 Second, the apex court began entertaining claims of a socio-economic nature, extending the protective scope of the rights to life and livelihood. Notably, this development factually reversed the doctrinal hierarchy between fundamental rights and the Directive Principles of State Policy, which the Supreme Court had earlier established in State of Madras v Champakam Dorairajan, in furtherance of the social and Gandhian revolution that the Constitution had envisioned a few decades earlier.Footnote 16
The Supreme Court’s involvement with socio-economic rights primarily evolved through the interpretative expansion of the ‘procedure established by law’ clause under Article 21 of the Constitution, moving away from formalistic notions of justice and fairness towards a more substantive understanding of the interdependence between material needs and human dignity.Footnote 17 On this basis, the Court recognised entitlements to education, food, water, livelihood, shelter, health, and medical care as necessary components of the right to life, understood as something more than mere survival or animal existence.
The Supreme Court’s Interpretative Path to Recognition
The Supreme Court’s journey towards the recognition of the right to shelter took a significant turn with the landmark decision in Olga Tellis.Footnote 18 In this historical case, a five-judge bench addressed the eviction of pavement dwellers in Mumbai and acknowledged shelter as an integral facet of the rights to life and livelihood under Article 21 of the Constitution. While the judgment did not establish an autonomous right, it clarified that housing-related matters would fall within the ambit of the right to life. A significant step forward was taken in the later Shantistar Builders,Footnote 19 where the apex court linked the vague notion of livelihood more precisely to the human needs for food, clothing, and shelter – a triad that had already been central to the debates in the Constituent Assembly. Arguing that human beings cannot prescind from an accommodation suitable for their physical, mental, and intellectual needs, the court held that the right to life must be interpreted as encompassing the right to ‘a reasonable accommodation to live in’, granting access to what may be considered a ‘reasonable home’. The Constitution, as discussed in later cases, would thus oblige the State to work towards ensuring this right.
A significant advancement in this line of reasoning came with the decision in P G Gupta. Footnote 20 The Supreme Court, addressing the eligibility of dwellers in Gujarat under a hire and purchase scheme, read the right to a reasonable accommodation together with Article 19(1)(e) of the Constitution (the right of residence and settlement) to formally vest it with a fundamental rights status. This elevated the right to the same rank as those outlined in Part III of the Constitution, making it judicially enforceable. Interestingly, in its reasoning, the Court moved beyond a merely negative understanding of shelter as protection from eviction and made reference to Article 11(1) of the ICESCR to assert the imperative for the State ‘to provide permanent housing accommodation to the poor’.Footnote 21 However, the Court’s referencing of international human rights law in this context was riddled with instrumentalism, and the mentioned positive prong of the right to shelter would later acquire a meaning distinctively deviant from the progressive realisation standard envisioned under the ICESCR.
By the mid-1990s, the Supreme Court of India had recognised a fundamental right to shelter as a corollary of the right to life. Yet, these ambitious developments came to a halt towards the end of the decade, right after two important decisions authored by Justice Vivek Ramaswamy.Footnote 22 First, in Chameli Singh, the apex court relied on the ICESCR and the Universal Declaration of Human Rights (UDHR) to reinterpret the right to shelter through the lens of human dignity and personal development.Footnote 23 Accordingly, it expanded the right’s normative scope to include
all the infrastructure – including adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities – necessary … to live and develop as a human being.
Subsequently, in Ahmedabad Municipal Corporation, the Supreme Court recapitulated over a decade of sparse and intermittent contributions to the State’s constitutional duty to provide housing, emphasising its linkages with the substantive values of social justice, human dignity, and fraternity set out in the Preamble of the Constitution. Despite the expressive importance of ‘the duty of the State to provide right to shelter to the poor and indigent weaker sections of the society in fulfilment of the constitutional objectives’,Footnote 24 these judgments confirmed the relatively weak normativity of positive obligations in the Supreme Court’s conceptualisation of the right to shelter, and the limited level of judicial scrutiny it came with.
Justiciability of Shelter as a Conditional Social Right
By the end of the millennium, individuals in India could anchor their housing claims in a constitutional right to shelter, formally enjoying the same enforceability of fundamental rights in Part III of the Constitution, albeit without any autonomous protection against forced evictions. From this standpoint, shelter litigation aptly exemplifies the Supreme Court’s broader approach to social rights, described by Madhav Khosla as a ‘private law model of public law adjudication’ and referred to as a ‘conditional social rights’ approach.
The model comprises two distinctive characteristics. First, despite its formal fundamental rights framing, shelter functions in practice as a normatively empty constitutional vessel, with judges drawing its entire content from applicable legislative and policy schemes. For instance, in Olga Tellis, the Supreme Court granted alternative accommodation exclusively to pavement dwellers covered by a circular stipulating eligibility requirements for applicable slum rehabilitation schemes, deeming the obligation to temporarily accommodate informal dwellers prior to the demolition of their hutments to be strictly dependent on the terms of the scheme. However, a general requirement could not be inferred from the interdependence between shelter, human dignity, and life. The same rationale underpinned the decision in Ahmedabad Municipal Corporation, where the Supreme Court distinguished between encroachers who were eligible for alternative accommodation under enacted policies, and those who were not. The Court commented that
[i]t is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process.Footnote 25
Indeed, on its own, the right to shelter lacks any autonomous normative bearings, does not enjoy systemic or absolute protection, and may only be invoked by individuals with a legally recognisable housing entitlement under applicable legislative and policy frameworks. If the right were given a systemic and unconditional value, the Court would not need to ground its reasoning in such schemes when faced with violation claims.Footnote 26
A second and rather consequential characteristic of the model is that, in the absence of absolute guarantees, courts enforce the right to shelter only upon finding that the State has failed to fulfil its legal obligations under the relevant schemes. In Chameli Singh, for instance, the Supreme Court reviewed the land acquisition pursued by the State of Uttar Pradesh to conclude that ‘the plea of deprivation of [the] right to livelihood under Article 21 [was] unsustainable’ insofar as the State agency had followed through the procedure required under applicable housing policies.Footnote 27 Because the administrative action was reasonable, no constitutional protection whatsoever could be invoked. Non-compliance with legally binding obligations thus operates as a necessary precondition for the protection of the right to shelter. As Khosla explains, ‘[t]he existence of a violation is conditional upon state action’ and ‘will only occur when a scheme has been initiated but it is not being appropriately implemented’.Footnote 28 He thus interprets the limited granting of alternative accommodation in Olga Tellis as demonstrating that ‘[t]he Court’s remedy did not flow from a systemic right to shelter, but rather from the state’s failure to follow through on its decision to allot land’. Since the State had not violated any legal obligation in relation to ineligible slum dwellers, those individuals could not claim any shelter protection. Even more emphatically, in Jagdish, in denying rehabilitation to certain informal dwellers, the Delhi High Court held that
[i]f it is shown that respondent DDA has failed to provide low-income housing in adequate measure and in good time as per the [Master Plan for Delhi], then persons like the petitioners who came to reside in Delhi cannot be blamed for resorting to ‘squatting’ or seeking shelter in informal settlements and slums.Footnote 29
An Internationally Anomalous Right: Shelter as an Unenforceable State Duty and the Limits of Access to Justice
The ‘conditional social rights’ model is a distinctive feature of Indian constitutionalism, though similar approaches can be observed in neighbouring South Asian jurisdictions.Footnote 30 As mentioned at the outset, some recent High Court rulings exhibit a judicial effort to strengthen the limited legal guarantees applicable in slum clearance cases, especially in times of fast-paced economic development and infrastructural upgrading. In cases like Jagdish, Shivaji Krishna Zunjare, Sudama Singh,Footnote 31 Ajay Maken,Footnote 32 and State of Maharashtra v Charudutta Pandurang Kholi, among others,Footnote 33 the conditional right to shelter is interpreted with reference to the obligations enshrined in the ICESCR, presumably as a response to the Supreme Court’s consolidated neglect of international human rights standards on housing adequacy.
It is useful, first, to recall the content of the standards envisaged under the ICESCR. Article 11(1) is generally regarded as the clearest articulation of the right to adequate housing, elaborating on the broader right to a decent standard of living enshrined in Article 25 of the UDHR.Footnote 34 It recognises ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing’, requiring every State party to take steps ‘to the maximum of [their] available resources, with a view to achieving progressively the full realisation of the rights recognised’. Despite the significant textual similarity to Article 25 of the UDHR, Article 11(1) of the ICESCR has long been interpreted to single out an autonomous right to housing that is treated independently from the broader right to an adequate standard of living.Footnote 35
The most distinctive feature of this legal regime lies in its accountability framework articulated in conjunction with Article 2(1) of the ICESCR, which is characterised by the dynamic pairing of the progressive realisation standard with a range of minimal, immediately enforceable guarantees. To this end, states are required to (i) take ‘deliberate, concrete and targeted’ steps and ‘move as expeditiously and effectively as possible’ towards the full realisation of the rights;Footnote 36 (ii) give effect to a range of immediately enforceable provisions and to ensure ‘at the very least, minimum essential levels of each of the rights’;Footnote 37 and (iii) ‘demonstrate that every effort has been made to use all resources’ available to ensure minimal levels of rights satisfaction. Despite the fact that minimum core obligations are made subject to political preferences and resource-availability, they include, in the field of housing, a requirement for a national housing strategy;Footnote 38 the assurance of minimal levels of housing protection; the prohibition of discrimination in housing policy and legislation; the provision of domestic legal remedies against violations of the right;Footnote 39 and the presumptive embargo on forced evictions.Footnote 40 By express recognition of the UN Committee on Economic, Social and Cultural Rights, these safeguards stem directly from the right to housing’s ties with ‘the inherent dignity of the human person’.Footnote 41
The stark differences between the constitutional right to shelter and the international right to adequate housing under Article 11(1) of the ICESCR cannot be overstated, and in Khosla’s typology, these rights correspond to opposite instances of ‘conditional’ and ‘systemic’ protection of housing claims.Footnote 42 Although some degree of normative overlap exists – primarily in the requirement for a national housing strategy, the provision of domestic legal remedies (whose absence, in fact, prompted the Supreme Court’s shelter activism), and the conceptual linkages between one’s dignified life and the need for shelter – the most consequential difference between the two sets of rights lies in the thin normative autonomy of the constitutional right to shelter concerning both (a) positive obligations and (b) justiciable minimal guarantees.
Positive Obligations before the Supreme Court
Delving first into (a) positive obligations, the Supreme Court, since the inception of public interest litigation, has consistently linked the right to shelter with the directives expressed in Articles 38, 39, and 46 of the Constitution. The Court has maintained that the State bears a constitutional duty to improve the dwelling conditions of marginalised communities through redistributive policies. In P G Gupta, this assumption was refined into an imperative ‘to provide housing accommodation to the poor by providing for housing schemes where the weaker sections could have permanent settlement and residence assured under Articles 19(1)(e) and 21 of the Constitution.’Footnote 43 While this standard remains a prominent benchmark for law and policymaking, the Supreme Court has applied such a low level of scrutiny that, in practice, the standard may be reduced to the State’s obligation to have any form of housing schemes in place for the poor, without imposing any qualitative standard for legislation and policy outcomes. Coherently, housing legislation or policy has never been struck down on these grounds. However, because the Directive Principles ‘are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’, judges have consistently relied on the State’s duty to facilitate housing for the poor to provide extensive policy guidance on a case-by-case basis in their supervisory jurisdiction, with a view to contributing to the alignment of disputed housing schemes with Part IV of the Constitution.Footnote 44
The contrast with the standards under Articles 2(1) and 11(1) of the ICESCR is rather stark. As explained in General Comment No 3, the Committee reviews the selection of ‘means’ by State Parties (through the provided reporting and individual complaint mechanisms) applying a deferential but functional test of ‘appropriateness’ that aligns with the obligation to progressively realise the rights.Footnote 45 In this sense, the Covenant does not prescribe any specific strategies and remains neutral ‘in terms of political and economic systems’, and it rests with the reporting state to demonstrate the bases of appropriateness of the adopted measures. Review under the ICESCR is particularly rigorous with respect to immediately enforceable provisions, minimal guarantees, and regressive measures.Footnote 46 Ultimately, it should be added that Article 8(4) of the Optional Protocol to the ICESCR, adopted in 2008 amid great enthusiasm,Footnote 47 enjoins the Committee to ‘consider the reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant’, bearing ‘in mind that the State party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant’.Footnote 48 In the Committee’s understanding, the appropriateness and reasonableness are distinct yet partly overlapping and functionally interdependent standards, as they both revolve around the obligations set forth in Part II of the Covenant.Footnote 49 Coherently, the UNCESCR’s caselaw demonstrates a graduated intensity of reasonableness review, depending on the relative weight of the justificatory burdens borne by state.Footnote 50
In addition, the drafting history of the Optional Protocol demonstrates clear theoretical affinities with the then-emerging jurisprudence of the Constitutional Court of South Africa, to the extent that the ‘reasonableness’ standard articulated in Article 8(4) largely reflects an adaptation from Government of the Republic of South Africa v Grootboom.Footnote 51 In turn, the drafting of the South African Constitution was substantially influenced by the language and provisions of the Covenant.Footnote 52 Such connections between the Covenant and South African constitutionalism are noteworthy, as the tentative expansion of the constitutional requirement for procedural fairness under Article 21 of the Indian Constitution, pursued in several High Court judgments, takes these two experiences as paradigmatic benchmarks.
Since Grootboom, South African courts have scrutinised the reasonableness and justifiability of housing policies and legislation in light of the ameliorative obligations outlined in Section 26 of the Constitution (these include the State's duty (i) ‘to take reasonable legislative and other measures’; (ii) ‘to achieve the progressive realisation’ of the right; and (iii) to do so ‘within available resources’).Footnote 53 As Sandra Liebenberg succinctly puts it, reasonableness review requires courts to consider factors relevant to the progressive realisation of rights (‘the rights-orientated inquiry’) alongside the justifications advanced by the state for its actions or omissions (‘the justifications inquiry’).Footnote 54 For the first tier of the inquiry, the South African Constitutional Court has developed a set of criteria, including due care and concern for marginalised groups and for those experiencing urgent needs; sufficient flexibility of programs; and a proactive engagement with policy beneficiaries.Footnote 55 Accordingly, courts navigate between short-term responses and long-term policy objectives,Footnote 56 assisting and orienting, at all levels, legislative and policy efforts to advance the incremental realisation of socio-economic rights.Footnote 57 In this context, the specific requirement for due care and concern for vulnerable individuals strongly distinguishes constitutional reasonableness from its administrative law counterpart.Footnote 58
The Indian judiciary, by contrast, has approached housing schemes and policies primarily on a case-by-case basis – micro-managing administrative failures, issuing ad hoc judicial remedies to aggrieved informal dwellers, and providing policy guidance to public authorities.Footnote 59 This clearly reflects the different status that socio-economic matters have under the South African and Indian Constitutions, whereby the express unenforceability of the Directive Principles of State Policy under Article 37 of the latter perpetuates a structural barrier for a more substantive appreciation of justice and fairness in social rights adjudication. Even in the high-profile Bulldozer Justice case, the Supreme Court’s directions, formulated under Article 21 in the language of procedural fairness, reaffirm an administrative model of shelter adjudication.Footnote 60 In this framework, the judiciary primarily seeks to guide executive discretion toward greater procedural reasonableness, while refraining from a substantive interrogation of the compatibility of state policy or legislation with the constitutional guarantee of the right to shelter. Notably, the core obligation articulated in the ICESCR – namely, the requirement of prior judicial verification of the proportionality of forced evictions – remains unaddressed. The Court’s directions were, in fact, deliberately confined to demolition proceedings arising from criminal accusations, thereby excluding the traditional terrain of shelter litigation from their scope.Footnote 61
Both approaches come with their own set of advantages and disadvantages. The South African reasonableness jurisprudence showcases a distinctive focus on long-term objectives, which has been criticised as relying on a political process that often remains unaccountable to the country’s poor.Footnote 62 In this context, the South African Constitutional Court’s reliance on reasonableness review alongside the rejection of substantive minimum core arguments has been challenged as an insufficient strategy to achieve the practical goals associated with Section 26 of the Constitution.Footnote 63 In contrast, the lack of enforceable constitutional standards in India beyond access to justice and the mere existence of housing schemes for the poor prevents the judicial consolidation of accountability standards capable of steering legislative decision-making and thus fails to facilitate progressive realisation of the rights.
Enforceable Minimal Guarantees and Forced Evictions
The disparities between the right to shelter under the Indian Constitution and the standards associated with Article 11(1) of the ICESCR become more apparent when examining the assurance of justiciable minimal guarantees, especially in the context of forced evictions. According to the UNCESCR, forced evictions are ‘prima facie incompatible with the requirements of the Covenant’ and should be treated as a last-resort option. Furthermore, they must ensure that individuals are not left homeless and must, in any case, be accompanied by both substantive and procedural safeguards to avert administrative arbitrariness.Footnote 64
These systemic safeguards are, for the most part, inconsistent with the Supreme Court’s current approach. According to settled Indian constitutional jurisprudence, individuals do not possess the right to claim basic housing protection (such as alternative accommodation), as the constitutional right to shelter is considered coextensive with access to justice for violations of legal rights conferred by legislative or policy instruments. As reiterated in Vora Zakirhusain, ‘the right to shelter and encroachment are two different facets’, and informal dwellers cannot be rescued simply by claiming that they ‘have a right to shelter being both a fundamental as well as a human right’.Footnote 65 This does not imply that informal dwellers in India have no protection at all against forced evictions. Instead, it indicates that, from a constitutional standpoint, competent authorities have the discretion to decide on the form and scope of protection afforded to informal dwellers. In this regard, in Vora Zakirhusain, the Gujarat High Court recognised that ‘the State Government uses the tool of “eligible criteria” to discriminate and deny people their rights to housing and … shelter’, so that ‘those who meet the arbitrary “cut-off” dates and extensive documentation requirements are considered “eligible” for housing or resettlement, but still, shunted to uninhabitable settlements, generally on the peripheries of the city’.Footnote 66 At the same time, ‘[t]hose declared “ineligible” are rendered homeless or left to fend for themselves’. However, the Court also noted that it remains within the discretion of the political branches of the State to ‘shift its focus from construction of houses to the provision of the allotment of land, from housing targets to housing justice, and from market-based interventions to a human rights-based approach’.Footnote 67
In this context, judicial review in India is limited to evaluating whether the deprivation of shelter rights meets the standards of procedural fairness, as mandated by Articles 19 and 21 of the Constitution. In Olga Tellis, for instance, the Supreme Court considered Section 314 of the Bombay Municipal Corporation Act, which granted broad powers to evict informal dwellers without prior notice, and deemed it constitutionally admissible. The Court found the Act to be a ‘law’ within the scope of Article 21 and emphasised that any action under the Act ‘must be within the scope of the authority conferred by law and … reasonable’. Similarly, in Sudama Singh, widely considered as one of the most progressive judgments to this day, the Delhi High Court declared the government’s decision to demolish certain hutments, without prior notice, to make way for road infrastructure development as ‘illegal and unconstitutional’. This unconstitutionality determination, however, stemmed from the procedural unreasonableness of the authorities’ arbitrary exclusion of the petitioners from those eligible for rehabilitation or relocation, contrary to the requirements of the Master Plan for Delhi-2021 Act. Their exclusion was, therefore, procedurally unreasonable and hence unconstitutional. The same reasoning underpinned the Court’s rationale in Ajay Maken.
Further indications also arise from the Bulldozer Justice case, which reflects an increased willingness on the part of the Supreme Court to strengthen procedural guarantees offered in demolition proceedings, drawing upon Articles 19 and 21 of the Constitution in conjunction with a more substantive construction of the rule of law. That said, on the right to shelter the Court reiterated the case-by-case, ex post verification of administrative reasonableness and proportionality, subject to a wide array of directions issued pursuant to Article 142 of the Constitution.Footnote 68 These directions, however, do not constitute meaningful counter-majoritarian checks on the state administration’s exercise of executive discretion in eviction matters, but are confined to guiding administrative reasonableness in demolition proceedings involving individuals accused of criminal offences. Crucially, the Court provides no judicial verification on the substantive grounds for eviction, offering instead a vague exhortation that demolitions be treated as a measure of last resort – an instruction that appears largely redundant given the strictly posterior nature of judicial oversight.
In contrast, the UNCESCR has inferred a general requirement for preliminary judicial verification of the proportionality of forced evictions from Article 11(1) ICESCR – which remains an issue of administrative discretion under the Supreme Court of India’s approach – as a reflection of the obligation, stipulated in its General Comments Nos 4 and 7, for domestic law to incorporate the substantive and procedural guarantees required against forced evictions.Footnote 69 As elucidated in its third merits decision, Mohamed Ben Djazia and Naouel Bellili v Spain, an eviction may be compatible with the Covenant only if it is ‘provided for by law and is carried out as a last resort, and only if those affected have had prior access to an effective judicial remedy, in order to ascertain that the measure in question is duly justified’.Footnote 70 In addition, the Committee added that
there must a be real opportunity for genuine prior consultation between the authorities and the persons concerned, there must be no less onerous alternative means or measures available and the persons concerned must not remain in or be exposed to a situation constituting a violation of other Covenant or human rights.
Overall, in the context of Article 11(1) of the Covenant, the judicial verification of the proportionality of forced evictions requires courts to balance ‘the interests at stake for the person with the right to seek the eviction’, whereby the ‘availability of suitable alternative housing, the personal circumstances of the occupants and their dependants and whether they have cooperated with the authorities in seeking suitable solutions are crucial factors in such an analysis’.Footnote 71 As a consequence, public authorities have a particularly high burden of justification when they, for instance, evict without providing alternative accommodation, as ‘the State party must demonstrate that it has considered the specific circumstances of the case and that, despite having taken all reasonable measures, to the maximum of its available resources, it has been unable to uphold the right to housing of the person concerned’.Footnote 72
These requirements find close mirroring in South African constitutional jurisprudence, as the substance of the Covenant’s requirements has been incorporated into Section 26(3) of the 1996 Constitution and subsequently detailed in the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (PIE) (South Africa). According to this act, courts are mandated to assess ex ante whether it is ‘just and equitable’ to grant an eviction order, considering all ‘relevant circumstances’.Footnote 73 These circumstances encompass procedural elements such as the availability of alternative accommodation, the risk of homelessness, and meaningful engagement between evictees and public authorities,Footnote 74 as well as more substantive considerations related to the balancing of the interests at stake. Moreover, when a public body seeks the eviction of occupiers, safeguards against forced evictions intersect with reasonableness review. Here, the justice and equity of forced evictions depend on the reasonableness of both the relevant housing policy or programme, as well as the specific steps taken by the public body to meaningful engage with those affected, which is understood to require genuine consultation in good faith to foster cooperative housing development.Footnote 75
Expanding Procedural Fairness in Forced Evictions Through the International Right to Adequate Housing
The requirement for procedural fairness under Article 21 of the Constitution is crucial for a comprehensive understanding of shelter litigation in India. This provision allows for a significant degree of interpretative latitude, which courts have employed over time to mitigate the adverse effects of slum clearances, and to rhetorically frame administrative irregularities as constitutional violations. Indeed, the convergence between constitutional and administrative review under Articles 14, 19, and 21 of the Constitution is not exclusive to shelter litigation. Raeesa Vakil has characterised this phenomenon as the ‘constitutionalisation of administrative law’, whereby the Supreme Court has intermittently invoked uncodified principles of natural justice in the judicial review of fundamental rights violations.Footnote 76 This depiction highlights an increased reliance on administrative doctrines of fairness, arbitrariness, reasonableness, and proportionality in constitutional interpretation, fundamentally counterbalancing the textual absence of a substantive due process clause in the 1949 Constitution.Footnote 77 The Bulldozer Justice case is a crucial reinstatement of this interpretative inclination in the field of shelter adjudication. From a theoretical standpoint, the Indian approach reflects ‘the inverse of constitutional avoidance’, in the sense that ‘where a claim may succeed on constitutional or non-constitutional grounds, the [Supreme Court] prefers the constitutional remedy’. Presumably, this preference is due to the availability of more specific remedies in constitutional adjudication, coupled with the greater expressive force associated with declarations of unconstitutionality.Footnote 78
In decisions such as Jagdish, Shivaji Krishna Zunjare, Sudama Singh, Ajay Maken, and Charudutta Pandurang Kholi, among others, judicial review of procedural reasonableness has yielded particularly innovative interpretative outcomes, in which courts have extended procedural fairness to its full human rights potential. Faced with abusive or flawed implementation of housing schemes, these rulings harness key flexibilities in administrative law doctrines, such as reasonableness and proportionality, to expose and curb arbitrariness in forced evictions that might otherwise have escaped judicial scrutiny. The judgments are notable not only for their doctrinal elasticity but also for their deep engagement with international human rights standards on the right to adequate housing, notably General Comments Nos 4 and 7 of the UNCESCR, alongside a range of United Nations initiatives framing housing as a human right. The courts have also drawn extensively from South African constitutional jurisprudence, particularly referencing landmark decisions such as Grootboom, Port Elizabeth Municipality v Various Occupiers,Footnote 79 and Occupiers of 51 Olivia Road v City of Johannesburg. As emphasised by Justice S Muralidhar in Ajay Maken, which notably opens with a Nelson Mandela quote classifying ‘first generation rights as a smokescreen to obscure the deep underlying forces which dehumanise people’, the ‘decisions of the South African Constitutional Court provide useful guidance to courts on developing the jurisprudence around the right to adequate housing’.Footnote 80 This guidance is particularly relevant to two specific areas of interest: the democratic legitimacy of the judicial enforcement of social rights and the doctrine of meaningful engagement. The latter, developed by the South African Constitutional Court from Port Elizabeth Municipality v Various Occupiers, is an attempt to reconcile adversarial interests in the judicial management of forced evictions through emphasis on deliberative practices and consensus-building.Footnote 81
In substance, the aforementioned High Court judgments bridge the constitutional right to shelter with the international right to adequate housing by incorporating international human rights standards into the standard of procedural fairness, in combination with administrative reasonableness. A shared methodological premise in all of these cases is the asserted enforceability of Article 11(1) of the ICESCR through Section 2(f) of the Protection of Human Rights Act of 1993, which defines ‘human rights’ as ‘the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India’.
This alone marks a meaningful departure from the approach of the Supreme Court. As anticipated in the second section, the apex court has made reference to international human rights standards in a few early cases when discussing the normative bearings of the right to shelter. In PG Gupta, Justice Ramaswamy notably described the housing schemes adopted by the State of Gujarat as an instance of the progressive realisation of the obligations imposed by the right to adequate housing under Article 11 of the Covenant.Footnote 82 Moreover, in cases like Chameli Singh and Ahmedabad Municipal Corporation, the bench emphasised that India, as a State Party to the ICESCR, is required to take steps under Article 11(1) of the Covenant towards better housing conditions.Footnote 83 Despite their expressive significance, however, these references had little or no impact on the interpretative outcomes of the decisions since, in every single case, the Court adhered to a conditional reading of the right to shelter, distinguishing between different categories of informal dwellers based on eligibility criteria.
Such fundamentally hollow reliance on ICESCR standards can be linked to a broader general feature of judicial activism in India, namely the courts’ tendency to utilise international law instrumentally to assist in ‘their perceived constitutional mandate to dispense justice’.Footnote 84 Accordingly, the Supreme Court’s early references to the Covenant are more appropriately understood as merely persuasive or rhetorical reinforcements of the doctrines established in Olga Tellis and Shantistar Builders, and as instances of the expressive populism that has characterised judicial activism since its very outset.Footnote 85 They project an internationally laudable judicial positioning on a politically sensitive issue, concealing the fact that, constitutionally, the judiciary can do very little to challenge political determinations on housing adequacy. This consideration finds resonance in Pratap Bhanu Mehta’s comments on Olga Tellis, according to which ‘the expressive character of what [the Court] does is much stronger than the actual implication’, since judicial outcomes are ‘weak in terms of not challenging the executive or legislature’.Footnote 86 In other words, early references to international human rights standards must be situated within the broader context of the Supreme Court’s search for popular legitimacy and respect the fundamental normative differences between the right to shelter under Indian constitutional law and the more robust standards associated with the international right to adequate housing.
Nevertheless, with respect to the application of the conditional right to shelter, the aforementioned High Court decisions exhibit a more grounded approach. In Jagdish, the Delhi High Court overturned the respondent authorities’ denial of rehabilitation to certain informal dwellers, holding that procedural reasonableness necessitated the prior adequate notice. In this instance, the Court drew on General Comments Nos 4 and 7, cited Grootboom, and linked the dwellers’ right ‘not only to Articles 14 and 21 of the Constitution, but also Article 11(1) of the International Covenant on Economic, Social and Cultural Rights which has been ratified by India’.Footnote 87 In Sudama Singh, a detailed discussion of international standards on forced evictions led the bench to infer from the Delhi-2021 Master Plan an obligation to conduct a preliminary survey to ascertain the evictees’ eligibility for alternate accommodation and rehabilitation, as a matter of procedural fairness.Footnote 88 In Ajay Maken, the Delhi High Court once again extensively relied on international sources and South African constitutional jurisprudence to expand the Sudama Singh rationale into a dual requirement for mandatory notification of demolition drives and eligibility surveys.Footnote 89 The judges also delved into the procedural guarantees and principles of fairness that should guide rehabilitation, including the preference for in situ rehabilitation and the need to afford dwellers ‘adequate time’ during relocation. Finally, in the case of State of Maharashtra v Charudutta Pandurang Koli, the Bombay High Court relied on the ICESCR as ‘settled law’ to halt the relocation of dwellers to a heavily polluted and reportedly uninhabitable site in Mumbai.Footnote 90 In this context, the Court mandated the respondents to provide alternative accommodation or pay transit rent for the families waiting to be relocated.
From an interpretative standpoint, all these decisions react to the deferential posture typically associated with the constitutional pre-eminence of the prohibition of encroachments as a key tenet of the conditional right to shelter approach, sometimes even harshly proclaimed by judges.Footnote 91 Creatively, they reclaim some degree of judicial oversight over the consistency of forced evictions with human dignity, normatively filling in the requirement for procedural reasonableness by reference to international human rights standards. Moreover, in most cases, including Jagdish, K Balasubramanian v The Commissioner, Sudama Singh, and Ajay Maken, the courts went further by facilitating consultation between the evictees and the respondent authorities – in rough correspondence with the South African doctrine of meaningful engagement.Footnote 92 Although these cases were all decided in continuity with the fundamentals of the conditional social rights model, they nonetheless strive to mitigate its key deficiency, namely its detachment from substantive ideas of justice and fairness. In this way, they allowed for the entry, through the backdoor of procedural fairness, of adequate housing standards into Indian constitutional law, serving as a complement to an otherwise considerably restrictive interpretative approach.
Several considerations can be made regarding the viability of this hermeneutical orientation. These efforts perfectly align with the long-established principle that domestic law should be interpreted ‘in a manner that avoids confrontation with well-established principles of international law’, as first established by the Supreme Court in Gramophone Company v Birendra Bahadur Pandey.Footnote 93 To this end, both progressive realisation and the presumptive protection against forced evictions may indeed be considered ‘well-established principles of international law’, given India’s long-standing commitment to the ICESCR and the considerable comparative uniformity in the domestic receptions of its obligations.
The main challenges, however, lie in the specifics of the Indian dualist system, where legislation is required for the direct enforceability of international treaties. India has not yet enacted legislation to transpose adequate housing standards into domestic law. Nevertheless, similar deficiencies have not constituted a major hurdle in other areas of constitutional interpretationFootnote 94 and may be resolved through one of the interpretative principles established by the Supreme Court in Vishaka v State of Rajasthan. Footnote 95 Here, the judges observed that ‘[i]t is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law’.Footnote 96 Accordingly, the constitutional feasibility of interpreting procedural reasonableness standards in line with international human rights standards will ultimately depend on (i) the presence of a vacuum in domestic law; (ii) the consistency of the transplanted international standards with domestic law; and (iii) the willingness of the courts to balance economic development with strong procedural and substantive guarantees.
Focusing on the second requirement, despite the theoretical contrast between systemic and conditional forms of social rights protection, there is in fact no inconsistency between the constitutional right to shelter and the international right to adequate housing, as the former – as established in the second and third sections of this article – functions as an empty vessel bearing little if any autonomous normative significance beyond access to justice and the state’s unenforceable duty to better housing conditions. The extent of any other inconsistency depends on the interpretative vacuums left open in applicable policy and legislative schemes. To this end, in National Legal Services v Union of India, the Supreme Court clarified that ‘[i]f Parliament has made any legislation which is in conflict with international law, then Indian courts are bound to give effect to the Indian law, rather than international law’.Footnote 97 It follows that, absent legislation unequivocally antithetical to international human rights standards, these can still be interpretatively leveraged.Footnote 98
Given that, in the current state of affairs, the limited guarantees routinely afforded in housing policy and legislation do not correspond to an active barring of human rights-consistent outcomes, the leveraging of normative vacuums ultimately depends on the degree of deference shown by individual courts when scrutinising the guarantees envisaged in policy schemes. Generally speaking, procedural and substantive guarantees in India tend to be remarkably thin compared to ICESCR standards, so that there remains a great wealth of hermeneutical opportunities to increase the relative weight of procedural fairness in relation to the constitutionally mandated prohibition of encroachments on public land.
Conclusion
This article has reviewed the constitutional relevance of shelter claims in India, tracing the evolution of the Supreme Court’s interpretative doctrine from the marginal role of housing adequacy in the Constituent Assembly debates to the distinctive features established in Olga Tellis and its progeny. Over more than three decades of judicial activism, the right to shelter has essentially evolved into (a) the unenforceable ‘constitutional duty [for the State] to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter’, inferred by courts from Articles 38, 39, and 46 of the Constitution;Footnote 99 and (b) access to administrative justice through the textual gateway of Article 32 of the Constitution against the lack of, or defective, or abusive implementation of housing policies. While courts routinely discharge the State’s positive obligation upon simply confirming the existence of housing schemes directed at facilitating housing for the poor, without engaging in any qualitative review, supervisory jurisdiction in public interest litigation has provided a platform for courts to intervene, on a case-by-case basis, via ad hoc policy guidance to the public authorities responsible for shelter rights deprivations, especially in the context of evictions.
As a complement to this traditional right to shelter approach, the High Court judgments discussed in the fourth section of this article demonstrate a commendable effort to counterbalance majoritarian anxieties amid rapid economic, infrastructural, and urban development.Footnote 100 This is achieved through the expansion of the constitutional requirement for procedural reasonableness by referring to the ICESCR, whose safeguards have been explicitly constitutionalised in South Africa. Landmark decisions such as Sudama Singh and Ajay Maken stand as manifestos of this interpretative approach by which the penumbra of the procedural guarantees envisaged in housing schemes is filled, within the limits of the required existence of a legal vacuum, with human rights-inspired checks to monitor and constrain slum clearances. Arguably, this is the most that courts can do under existing legal constraints to mitigate the negative consequences of forced evictions. This interpretative approach is defensible both in light of the constitutional prohibition of encroachment as a fundamental tenet of the conditional right to shelter approach and the standpoint of the ICESCR’s indirect incorporation in the Indian legal system via the 1993 Protection of Human Rights Act.
Nonetheless, rulings such as Sudama Singh and Ajay Maken remain the exception rather than the norm,Footnote 101 and this line of jurisprudence has yet to receive endorsement of the Supreme Court. On the one hand, in Ashwani Kumar and other recent decisions, the apex court resisted attempts to align the constitutional right to shelter and the principle of procedural reasonableness with ICESCR standards.Footnote 102 This resistance reflects the enduring blocking effect of Article 37 of the Constitution and the judiciary’s corresponding reluctance to substantively engage with social rights. On the other hand, while the Bulldozer Justice directions mark a significant advance in the procedural safeguards available in demolition proceedings, the judgment is characterised by two key limitations. First, the Court expressly confined the scope of its directions to demolitions of private property associated with criminal accusations, explicitly excluding cases involving ‘unauthorized structures in any public place such as road, street, footpath, abutting railway line or any river body or water bodies’Footnote 103 – precisely the areas that have traditionally constituted the core of shelter claim litigation and where judicial deference to governmental economic imperatives has been most visible. Second, the core safeguard envisaged under both the ICESCR and South African constitutional law – namely, the requirement for preliminary judicial verification of the substantive proportionality of proposed evictions – remains conspicuously absent from the Court’s reasoning, which not only fails to engage with this safeguard but also deliberately refrains from engaging with the broader framework of international human rights law.
Until these limitations are addressed, the interpretative expansion of procedural fairness, within the narrow confines outlined above, remains the most workable judicial strategy for reconciling the demands of rapid economic and infrastructural development with the need to afford informal dwellers some protection against executive arbitrariness. Yet this approach continues to suffer from inconsistency and unpredictability, and its effectiveness remains contingent on the disposition of individual High Court judges. In this regard, the enactment of legislation explicitly incorporating the international right to adequate housing into domestic law – thereby generalising safeguards against forced evictions and limiting administrative discretion in slum clearances – would significantly strengthen the legal position of informal dwellers, though it remains highly unlikely in the current political climate.Footnote 104
In conclusion, I partly share the Gujarat High Court’s reflection that ‘the debate as regards the rights of encroachers over public land vis-à-vis the right to shelter should come to an end’ insofar as the prohibition of encroachment on public land is considered, ‘because an encroacher can save himself from being forcibly evicted only if during his period stay over the encroached land any enforceable legal right has crystallised in his favour’, and ‘this legal right does not mean the mere constitutional right to shelter’.Footnote 105 This is, in fact, a synthesis of what the conditional social rights model has meant in almost forty years of shelter litigation. I do not concur, however, with the Court’s dismissal of international human rights standards as toothless and the South African constitutional jurisprudence as ‘extremely difficult to accept’,Footnote 106 because this prejudiced closure fails to appreciate the potential of international human rights standards as a normative supplement for the many vacuums left open by domestic housing policies. Where such policies fail to curtail administrative arbitrariness, the Constitution does not preclude courts from leveraging the interpretative latitude associated with procedural reasonableness to alleviate marginalisation and minimise suffering among the country’s most vulnerable populations.
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