The Lost Right to Housing in COVID-19: A Case for the Marginalized

By Aastha Soni, final year Business Economics student from Khalsa College, University of Delhi.

INTRODUCTION

Homelessness is a cause and one of the more extreme outcomes of both poverty and inequality. According to the 2011 Census data, India had more than 17 lakh homeless inhabitants at the time[i] and the numbers are only soaring.

According to the United Nation Habitat’s ‘World Cities Report 2016’,[ii] as many as 980 million in urban households lacked decent housing in 2010. As of 2014, thirty per cent of the urban population in developing countries resided in slums as compared to thirty-nine per cent in 2000. According to the report, up until 2030, 630 million people will be rendered homeless.

Currently, the world is battling extremities from across political, health and economic ends due to the COVID-19 pandemic.

In 2020 these figures became graphic, as thousands marched from cities returning back to some semblance of home. The COVID-19 pandemic and its subsequent effect on vulnerable sections and their dwelling spaces were realised through the visuals of displaced and dispossessed daily wagers and migrant labourers. While almost all Nation States resorted to a ‘stay at home’ policy to battle the COVID-19 pandemic, given the aforementioned data on homelessness in India, this move itself was exclusionary.

At the onset of the global pandemic last year, the United Nations Women published a report titled ‘Violence against women and girls: the shadow pandemic’.[iii] This report highlighted increased violence against women during the pandemic.

According to the report, despite it being a ‘protective measure’, the lockdown posed ‘deadly danger’ to even those with shelters. The study concluded an increase in violence against women in lockdown, equivalent to a ‘shadow pandemic’.

In India, a majority of people live on rent, dwelling in temporary or inadequate accommodations and most of them depend on daily wages for subsistence. Considering these realities, the ‘stay at home’ order proved to be nothing more than rhetoric, it is a classic case of preaching the helpless.[iv]

The article is set against the backdrop of the unfulfilled promise of the right to adequate housing, simultaneously accounting for the damages done by the COVID-19 pandemic.

The article will discuss the right to adequate housing of women and marginalised sections and its relevance in the Indian context. As the prism of ignorance is traditionally edged towards women and marginalised sections of our country, even in a pandemic, they were amongst the worst hit. Working with this knowledge, the piece navigates through the issues of domestic violence, deteriorating mental health and forced evictions in the backdrop of a national health emergency.

Right to Adequate Housing and Right to Life

Internationally, the human right to housing has been highlighted as one of the primal rights by multiple organisations and treaties.

The Committee on Economic, Social and Cultural Rights (ESCR) and the United Nation (UN) Special Rapporteur recognised adequate housing as a component of the ‘right to an adequate standard of living’. Setting certain minimum core obligations for the state to follow under various provisions of the International Covenant on Economic, Social and Cultural Rights (ICESR).

Article 11 of ICESR[v] highlights concerns regarding lives and livelihoods. It is to be noted that these concerns are stretched beyond merely the right to shelter, the understanding of the right is also motivated by a necessity ‘to the continuous improvement in living conditions’.

“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 ESCR paid special attention to this Article. In ‘General Comment No.4’ it elaborates on the legal interpretation of the right to adequate housing as well.

The committee of ECSR has gone on to elaborate on the meaning of ‘adequate housing’ as comprising of, ‘security of tenure, availability of services, affordability, habitability, accessibility, location and cultural adequacy’.

‘The Right to Adequate Housing’ report published by the UN-Habitat lays down the obligations that the States that ratified the ICESR and other human rights treaties must apply them with immediate effect. This includes states ‘obligation to protect’.

Therefore the States parties are obliged to:

“‘protect individuals’ right to equality in all policies related to access, availability and affordability of housing and related-services, without discrimination.”

Furthermore, States parties are obligated to prioritize disadvantaged groups in fulfilling the right to adequate housing, in particular to those who are disproportionately affected by inadequate housing and homelessness.

On April 17, 2020, the ESCR Committee issued a statement highlighting State parties’ obligations in the context of COVID19, including recommendations to undertake special targeted measures to protect vulnerable groups. Some of these recommendations included measures such as,

 “imposing a moratorium on evictions; protect[ing] the health and livelihoods of vulnerable minority groups;  ensuring accurate and accessible information, to protect the population against dangerous disinformation”

One of the recommendations pressed upon the need for legal remedies for children and women subjected to domestic violence during the pandemic. As well as specified that the ‘law enforcement officials respond to cases of domestic violence and the government provides operational domestic violence hotlines’.

The intent of these treaties have trickled down to India as well, the judiciary has often emulated the importance of such conventions in its judgements. Though India has ratified several international instruments, whether we have entirely realised the right to housing as a non-negotiating human and legal right is still in question.

Although the right to adequate housing is not outrightly mentioned in the Indian constitution or codified through legislation at the national level. But the Supreme Court has read the right to shelter as being implicitly protected under the Indian Constitution.

In Chameli Singh v. State of UP, (1996) [vii], the Court read the right to shelter as a fundamental right emanating from the Right to Life with human dignity. The court stated,

“The right to shelter, therefore, does not mean a mere right to a roof over one’s head but the right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right.”

Furthermore, in, Olga Tellis and Ors. v. Bombay Municipal Corporation, a writ petition was filed by slum and pavement dwellers, civil rights organisation like People’s Union for Civil Liberties (PUCL) and Journalist Olga Tellis, among others.

The petition was filed against the State of Maharashtra and the Bombay Municipal Corporation (BMC) for forcefully evicting Kamraj Nagar’s slum dwellers and demolishing the pavements inhabited by them. It was argued that the eviction of the basti dwellers was a violation of the latter’s right to livelihood guaranteed by Article 21’.[viii]

The petitioner also contended that while they didn’t have the right to encroach a public property, they had ‘the right to reside and settle in any part of the country which is guaranteed by Article 19(1)(e)’.

In this matter,  the court held the eviction-order valid. But it also posited that the basti dwellers could not be evicted without prior notice and alternative accommodation. As the eviction ‘will lead to deprivation of their livelihood and consequently to the deprivation of life’.

The court advanced,

“[t]he eviction of the pavement or the slum dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds dear in life.”

Apart from forced eviction for slum dwellers and migrant workers, the lost right to adequate housing is a pressing issue especially for women, children, persons with disabilities and vulnerable or disadvantaged communities. Therefore the right to adequate housing needs to be understood in the light of discrimination, violence and the overall living environment or condition of a resident. The narrow interpretation of the right to adequate housing, earlier limited only to ‘access to shelter’, has long been overturned by courts and several international instruments

Even in Shantistar Builders vs Narayan Khimalal Totame, the court had pressed upon the need for a decent environment and reasonable accommodation for a person. The court advanced,

“for a human being, it (shelter) has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual.”

Shadow Pandemic

During the pandemic, economic and socially vulnerable communities were most prone to the wrath of the health emergency and subsequent lockdowns. The nationwide lockdown overstayed its stay.

In such extremities, the conditions persisting within a house can deeply upset the mental and physical health of a person. This includes the already persistent and amplified threat of violence against women, especially for women from weaker economic and social backgrounds.

On April 24, with a surge in domestic violence cases during the lockdown, the Delhi High Court directed the Delhi Government and the Central Government to ensure effective implementation of the Protection for Women from Domestic Violence Act 2005 (PWDVA).

All India Council of Human Rights, Liberties and Social Injustice (AICHLS) filed a petition owing to extensive threats faced by women during the lockdown. Urging the court to take measures to check violence against women in the bounds of their homes. The petitioner highlighted that there were increased complaints concerning domestic violence. AICHLS also flagged that there were no outlets for immediate relief which included no response from Delhi Commission for Women and National Commission for Women’s dead WhatsApp helpline. [ix]

Even before the world went into quarantine, domestic violence was already an impending menace. The UN Women report published in April 2020[x] stated that in the last 12 months 243 million women and girls across the world were subjected to sexual or physical violence by their partners.

Domestic violence data already suffers from the issue of under-reporting. With a lockdown in place, these instances only increased and there can be no certainty as to how many cases went underreported during this time.

The data on calls received by helpline numbers and shelters revealed two important aspects.

First: the data presented a duality, while some states saw a decline in the number of calls received, others saw a spike. Considering the fact of under-reporting, this data is perhaps telling of victims’ limitation to report violence during a lockdown.

Second: law enforcement agencies, shelters and Non-Profit Organizations were occupied with covid duties. Considering the inflow of homeless people, most shelters were exhausted to their limits.[xi]

The issue of underreporting such incidents isn’t new, women tend not to speak up against their families in general. The pandemic obstructed this option even further for the few who did.

Women not resisting abuse is not only motivated by deeply rooted patriarchy but lawmakers’ and policymakers’ inability to empower them with the correct implementation of remedial laws.

Domestic work is also a significant reason for the surge in domestic abuse and further deteriorates women’s health condition. Domestic work is taxing and is considered to be voluntary. Due to gender roles assumed in households, it often falls upon the women to shoulder this responsibility.

Because of patriarchal gender roles ingrained in both partners, the disparity between them often gives rise to male domination. These gender roles box women to be soft and giving, while men are engineered to be masculine and powerful. This puts the entire onus on the women to bear the responsibility of the house.

A failure to pursue these ‘duties’ during a pandemic due to dwindling mental or physical health often leads to discord within households, subjecting women to violence and abuse from the family.[xii]

Oxfam India, in its 2016 article titled  ‘10 years of domestic violence Act’, affirmed already foresighted challenges of implementation of the measures against domestic violence in the Protection of Women from Domestic Violence Act (PWDVA). The report called out several states for the continuous surge in domestic violence in their failure to effectively implement these laws.[xiii]

In the 2006 judgment, S.R. Batra And Anr vs Smt. Taruna Batra, the Court had interpreted narrowly the meaning of ‘shared household’ as mentioned in Section 2(s) of the PWDVA. The court held that a woman cannot claim a legal right to live in a shared household owned by her mother-in-law. The court reduced the right to reside only to the property owned by the husband and not a women’s in-laws.

This particular judgment led to a rise in several cases relating to women’s right to residence. Following the judgement, several women were denied the right to reside in homes belonging exclusively to the in-laws, even though they had resided in these homes after marriage.

Violations to adequate housing caused by domestic violence have been appropriately addressed by creating the right to reside under the PWDVA. It is hoped that a more stringent and sensitive implementation of this right will empower women to fight domestic violence and homelessness that can result from it.[xiv]

Prism of Ignorance for Marginalised Communities (Dalit Women)

In 2014, D Sujatha in her project ‘Domestic Violence and Dalit Women’[xv], highlighted the caste divide that segments women further in varying degrees of subjugation. The suppression is faced both in terms of caste hierarchy and gender hierarchy. This oppression also stems from the very nature of their work which is often menial. Sujatha, in her study, conducted a qualitative interview with thirty Dalit women to understand this segregation. She states,

“unlike women from the dominant castes, Dalit women are used to working outside the home and their labour is considered crucial for the survival of the family”

According to her, a Dalit woman is three times more exploited as compared to a Dalit man, she furthers

 “The everyday discrimination against Dalit women is further marked by mental, emotional and physical violence by their spouses and other family members.”[xvi]

The National Family Health Survey – NFHS (2006) showed that the prevalence of violence is much higher against women belonging to the scheduled castes and tribes (SC/ST). With 41 per cent Scheduled Caste women and 39.3 per cent ST women. Even in terms of emotional violence, a sizeable percentage of SC, ST and OBC have to face the same.

Aggrieved by caste, class and gender disparity, the research also brought to fore the issues of accessibility for Dalit women to report violence. Dalit women face difficulty in approaching counsellors as the latter’s approach is often ‘patronising and condescending’.  Hence there is a clear and unresolved issue when it comes to reporting abuse. Though in this case, the act of reporting abuse becomes ten times more tedious and could be life-threatening.

Bitten Thrice: COVID-19, Caste and Violence in 2020

COVID-19 is arguably the most ghastly health emergencies, during the last year, there was an upsurge in cases of discrimination and atrocities against Dalits, especially women and children. The National Campaign on Dalit Human Rights had to intervene in more than eighty cases of abuse and discrimination. The intervention came after such cases were not addressed by the law enforcement agencies and judiciary.[xvii]

On June 10, 2020, the National Dalit Movement for Justice (NDMJ) had issued a press release detailing the range of atrocities against Dalits during the lockdown. The press release had expressed concern over the increased cases of caste-based violence and underreporting regarding the same. The NDMJ had collated a list of instances that had surfaced in the media relating to such violence. Apart from multiple instances of untouchability, murder and harassment, they indicated an increase in domestic violence amongst Dalit women.[xviii]

It will be an understatement to say that most of the cases relating to domestic violence against Dalit women are underreported. To picture these stats or rather their invisibility during a pandemic is daunting. Underreporting can be credited both to the social status of women, especially Dalit women; and the patriarchal attitude of enforcement authorities as the latter tend to delay remedy or do away with the few complaints that are filed.

Prism of Ignorance of  Marginalised Communities ( For LGBTQIA+)

Not only women but gender minorities from the LGBTQIA+ community have faced dire consequences during the pandemic.

In its briefing paper, ‘COVID-19 Pandemic in India: Right to Housing’, International Commission for Jurists (ICJ) pressed concerns regarding threats of eviction due to discrimination ‘based on ethnicity, place of work and ability to pay the rent’.[xix]

The paper highlighted a ‘disproportionately higher risk of domestic violence in houses during the pandemic’, especially for women and the LGBTQIA+ community.

Individuals from the LGBTQIA+ community are often subjected to stigmatisation, this stigmatisation often reeks from within their natal family and households. The same was acted out abashedly during the pandemic. Arguably, the only defence against COVID-19 was one’s house, despite it, individuals from the community had been subjected to forced evictions or mental trauma in their own homes during the lockdown.

Factors such as the persistent discrimination against the LGBTQIA+ community, lack of economic stability and access to an adequate shelter have snowballed into both mental and physical abuse.

Individuals who associate with the  LGBTQIA+ spectrum don’t have sufficient legal redressal for protection against violence. There is no provision, so far, that focuses on safe housing for the LGBTQIA+ community and nothing in law particularly focuses on anti-discrimination against the community at large. Additionally, the court is yet to affirm the rights of LGBTQIA+ persons with respect to housing.

Due to the stereotypes attached to persons from the LGBTQIA+ community, they are often subjected to homelessness. In the case of individuals belonging to SC, ST or OBC, they are further outcasted to specific gendered spaces.

The LGBTQIA+ community as a whole, and transgenders, in particular, face segregation and relegation in lower socio-economic areas. This outrightly diminishes their right to adequate housing.

They are often denied accommodation or are pushed into particular localities which lack basic amenities, often located far off from their workplaces. All these instances jeopardize the very essence of the right to housing for them.

Forced Eviction

Legal security of tenure is one of the key components of the right to adequate housing as per the ESCR Committee. It protects individuals from forced and illegal eviction, harassment, and other threats. This legislation includes a prohibition against forced evictions.

For evictions to be permissible, they must follow the ESCR Committee rules. In the case of forced evictions, domestic laws must provide for alternate living shelter to those evicted. [xx]

The High Court of Delhi has recognized that forced eviction blatantly violates,

“the right to livelihood, to shelter, to health, to education, to access to civic amenities and public transport and above all, the right to live with dignity.” [xxi]

As mentioned earlier, the Supreme Court, for its part, in Olga Tellis held that eviction of dwellers from pavements by the State requires that prior notice be given to the dwellers for the eviction process to be deemed lawful.

As unlawful evictions may also infringe on the right to life with dignity. The Court has also held that in such circumstances eviction should only be lawfully granted if alternate accommodation is made available for those evicted.

Even though these laws are all-encompassing, but so far, nothing caters to the LGBTQIA+ community specifically.

The number of forced evictions, especially for LGBTQIA+  persons, have been on a hike for quite some time now. Landlords do not adhere to such binding judicial pronouncements, often seeking evictions under vague and poorly enforced rental laws.

Most of the rental agreements are interpreted to give a wide space of discretion to landlords and property owners. These loopholes in the lucid interpretations of the writing of rental laws usually allow landlords to seek eviction if the tenant has been convicted of causing a nuisance. These loopholes are often masked as an excuse for ‘immoral’ activities supported by rental provisions that favour only the landlords[xxii].

The provision that rental accommodation is fit for use only by the lease-holder and their family members (related to them by marriage, birth, or adoption) is firmly rooted in the tenancy laws in various parts of the country. [xxiii]

The definition of “family” is limited and frequently excludes LGBTQIA+ persons in alternative family arrangements. Such provisions of law constitute indirect discrimination and are inconsistent with both Indian judicial precedent and international law.

In National Legal Services Authority (NALSA) v. Union of India and Navtej Singh johar vs. Union of India, the Supreme Court upheld the right of ‘transgender persons’ to decide their self-identified gender. The court asked the government to mitigate the extreme marginalisation and oppression faced by the community. The court directed,

“The Centre and the State Governments to take steps to treat them (transgender) as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”

In NALSA v. Union of India and Navtej Singh johar vs. union of India, it is clear that LGBTQIA+ persons are considered by the Supreme Court to be a vulnerable and marginalized group in need of appropriate prioritization and protection.

Moreover, in both the judgments the courts emphasised the rights of the LGBTQIA+ community to shelter and the ‘right to a standard of living adequate for the health and well-being of himself and of his family’. For the same, the court referred to the ICESCR and ESCR committee’s jurisprudence. These judgements extrapolated that any discrimination against LGBTQIA+ persons, including in access to housing, is prohibited by the Indian Constitution.

Despite two of the most path-breaking judgements, the court’s direction to the Center and State Government didn’t translate well in the Transgender bill, passed by the parliament in 2019.

The LGBTQ+ community is most susceptible to violence, abuse and ostracization by their families, within the confines of their natal homes. None of these concerns was taken into consideration in the draft Bill that is now an Act.

Transgender Persons Act 2019 [faults in the context of systemic discrimination and housing]

The Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha on July 19, 2019, by the Minister for Social Justice and Empowerment. Despite backlash from the trans community, the bill was passed in November the same year. The biggest challenge posed against the Bill as it was placed in the parliament for discussion was how the bill completely overlooked intersex persons. Thus, in its definition alone, the bill erased identities and simultaneously merged them.

While the Act prohibits discrimination against transgenders in employment, education, housing and other services. It doesn’t explicitly define ‘discrimination’. It never mentions the remedies available for those who suffer discrimination. Even though it recognises discrimination, it doesn’t provide reservation to counter such discrimination against the transgender person in education or housing.

Moreover, the only ‘relief’ for persons facing abuse at their natal homes is ‘institutionalised rehabilitation’ by a court order. Even the term ‘sexual abuse’ is not clearly defined, the same can directly affect transgender persons’ access to justice. In fact, the maximum penalty for all offences for the criminalisation of persons who ‘tend to act’ is only two years imprisonment.

The provision related to sexual abuse in Act is demeaning and trivializes the violence suffered by transgender persons. It violates the right to equal protection by law under Article 14 of the Constitution.

While there exists stringent legal redress for most forms of violence and harassment under the regular provisions of the Indian criminal law, there is no specific provision protecting the LGBTQIA+ communities.

In Millennium Educational Trust v. State of Karnataka, the High Court of Karnataka stated that,

“The right to shelter, therefore, does not mean a mere right to a roof over one’s head but the right to all the infrastructure necessary to enable them to live and develop as a human being.”

Additionally, transgender persons have often reported unjustified demands for higher rents and deposits than their cis-gendered peers for the same accommodation.

The precarious economic and physical conditions often force transgender persons to get into sex work and begging to fulfil their basic needs. While it is already well established that India is not a level playing field when it comes to marginalised communities including LGBTQIA+ communities, these gaps are far from narrowing.

The community constantly struggles with instances of misgendering, shame, stigma, lack of recognition, rejection and a general lack of sensitization and awareness about their lives.  These factors have led to an increased risk of mental illnesses and suicide within the transgender population. Contrary to India, internationally, it has been reaffirmed that as LGBTQIA+ persons are amongst the most likely to be affected by violence and harassment, therefore protection for them should be explicitly worded.

In Marsha Wetzel v. Glen St. Andrew Living Community LLC,[xxiv] Marsha Wetzel, 70, faced discrimination and harassment for her sexual orientation while she was residing as a tenant in a retirement home. She challenged the discrimination under the Fair Housing Act.

The United States Fair Housing Act (FHA), Section 3604(b) states,

“…it is unlawful [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, colour, religion, sex, familial status, or national origin.”

The US Court of Appeals read the FHA broadly, making the landlord liable for failing to protect the tenants/s despite knowing of the discrimination or harassment. The Court of Appeals covered ‘post-acquisition discrimination’, calling it a hostile housing environment.

A realistic rendition of this judgement needs to be implemented in India. Discrimination across all spectrums against any gender or sexual orientations needs to be countered by the law itself.

Internationally, countries have reaffirmed that LGBTQIA+ persons are prone to violence and harassment. Thus, there is a need for punitive measures to prevent these crimes, defining them explicitly within the scope of the law.[xxv]

As such legal discrepancies when burdened with unclear provisions and stigmatized spaces of living make them even more susceptible to homelessness in the time of COVID-19.

In ‘Living With Dignity: Sexual Orientation and Gender Identity-based Human Rights Violations in Housing, Work, and Public Spaces in India’, ICJ filed sixty Right to Information (RTIs) seeking a response s from state authorities across Delhi, Tamil Nadu, Gujarat, Karnataka, Andhra Pradesh and Kerala. The report mentions some states that following the NALSA judgement incorporated welfare schemes for a transgender person. ICJ had filed 11 RTI application in eight states, seeking information regarding the same.

One of the RTI responses received was indicative of the number of states that had established shelter holmes for  LGBTQIA+  persons. Underneath is the said response mentioned in the report,

“The responses received from Andhra Pradesh stated that no information was available. The responses from Delhi and Gujarat were incomplete and merely stated that there was no provision for separate accommodation for transgender persons in the shelter homes maintained by the state. The response from Gujarat additionally stated that transgender persons are not provided accommodation in shelter homes maintained by the state government. The response from Tamil Nadu stated that transgender persons cannot be provided accommodation  in shelter homes specifically maintained for women.”[xxvi]

After numerous efforts by the LGBTQIA+ community, several pushbacks and multiple back-and-forths, the Navtej Singh Johar v Union of India finally decriminalised section 377 of the Indian Penal Code, 1860.

The apex court upheld the right to privacy, the right to choose one’s sexual partner, Right to Life, Right to equality, as well as, the Right to Freedom of Speech and Expression. All of which, as the court stated, was violated by Section 377 IPC.

More than two years into the landmark judgement that challenged the moral compass of the social, its meaning and the intent is far from being realised. And the aforementioned RTI response is telling of that.

The stigmatisation is so deeply rooted that ‘social morality’ often takes over ‘constitutional morality’ which was upheld by the court. Given these realities, it easy to reduce that the State has failed to protect the rights of its citizens and has further exposed them to discrimination.

 Housing Conditions of Prostitutes:

When discussing the right to adequate housing in the context of women and marginalised sections, especially at the time of a global pandemic, it is necessary to bring to light sex workers’ condition in this regard. This section will deliberate about the state of sex workers during the pandemic. How the denial of human rights as a whole, prohibit them from seeking shelter?

Sex work continues to be invisible, and the state has made no direct efforts to change this. India has an estimate of 657,800 sex workers, yet, their presence is felt only covertly, often away from the State’s morality.

Since prostitution is not legalised in India, sex workers fall out of the ambit of protection under labour laws. This means that they are devoid of social and economic security and other benefits by the government for ensuring safe working conditions. Thus, subjecting sex workers to abuse, exploitation and trauma.

The Immoral Traffic (Prevention) Act, 1956, is simply archaic, while it legalises sex work but tries hard to keep up with the moral expectations of society.

The Act considers ‘prostitution as exploitation’ and prohibits supporting activities such as maintenance of brothels or soliciting customers, punishable offences. The act is shadowed by a male gaze which allows for sex work away from public spaces. The Act requires a family ‘custodian’ to rescue an adult sex worker. This further downgrades their autonomy over their own body.

This invisibilisation of sex work and sex workers has further lead to the marginalisation of sex workers, depriving them of their right to life and livelihood.

The pandemic has further deteriorated the living condition of sex workers. With a loss of livelihood during the pandemic, many women and transgenders involved in sex work led out to find avenues other than sex work. The abuse is manifold, the lack of developmental schemes and the state’s incompetency to address issues faced by sex workers has further contributed to the absence of health and social security.

In Delhi’s ‘red-light area’, G.B. Road, some women had resorted back to their villages owing to loss of work during the pandemic. But many were devoid of this option too. In July 2020, according to a ‘She the people’ report, many women struggled to sustain themselves through this time. Battling more than just a health emergency, women indulged in sex work and were unable to find a shelter to support themselves. Especially since there is no financial support or aid from the government and the same was true during the pandemic. The report said,

“Lack of business and customers and an impending uncertainty looming over their lives, many women left, but the 800 plus women who are still living in the pigeon holes of GB Road, face multiple battles, alone.”

Earlier in the last year, the government announced a $22.5 billion relief package for those impacted by the pandemic. In the welcome move by the government, specific reliefs were announced for the economically marginalised women, although sex workers seemed to be nowhere part of this consideration.

This is not surprising given the invisibilisation of sex work in India. Sex workers often struggle to claim themselves through the right to adequate housing, policy frameworks and government data.

Last year, NHRC issued advisories on Rights of Women in the context of COVID-19, these advisories were issued after an impact assessment that was conducted regarding the state of the marginalised women.

In its advisory, the NHRC included sex workers under the ‘women at work’ category. The advisory highlighted the precarious state of sex workers during a pandemic as they are stigmatised due to the nature of their work which involves physical contact.  The advisory also flagged how many sex workers were outside the purview of government schemes as they lack identity cards.

The inhabitants of the likes of G.B. Road have been cornered at the deep ends of the cities but are unable to claim the right to housing beyond these corners even during a pandemic.

It comes down to three primary issues: failure to access benefits due to their identity; unclear legislation for prostitutes; and the stigmatised nature of sex work which often clouds the underbelly fraught with abuse, harassment, excess of police, poor health and social care.

These factors among others tend to deny the basic human rights of sex workers as enshrined in the Constitution.[xxx] It’s hard enough to sustain as ostracized identities, the lack of access to the right to housing, deteriorated their situation all the more this year.

Conclusion:

In 1959, in his speech at the International Commission of Jurist’s gathering, Former Prime Minister Jawaharlal Nehru had said,

“Rule of Law, which is so important, must run close to the Rule of Life. It has to deal with today’s problems. And yet law, by the very fact, that it represents something basic and fundamental, has a tendency to be static. That is the difficulty. It has to maintain that basic and fundamental character but it must not be static, as nothing can be static in a changing world”.

The pandemic has exposed the ‘static nature’ of the laws, Indian laws failed to adapt to the changing socio-economic conditions on the ground. Even if changes were brought on paper, their implementation failed their intent.

The COVID-19 pandemic has exposed the vulnerability of the marginalised communities, including LGBTQIA+, sex workers and Dalit women. While these communities were amongst the worst hit, the Indian State turned a blind eye.

At present, the informal sector is more prone to professional and economic uncertainty and sex work is not only informal and unorganised but also unrecognised and unaccounted for. The precarious nature of work is tied to the vulnerable status of its workers. Unless there is recognition from the State, the marginalised will keep drifting away from claiming their rights. Recognition in legislation and execution can usher change, the right to adequate housing is innate to the right to life.

An Andhra Pradesh-based collective had sought help from the government last year for an exit strategy for trafficking survivors and sex workers. The collective urged the government to task alternate ways including ‘transitional housing, bank loans, and alternate employment’ to help sex workers. Such efforts are subjected to making these women self-reliant by helping them claim their identity through ration or Adadhar cards.

Although Section 377 IPC can no longer be used to perpetuate or foster discrimination and violence, its abolition is just the tip of the iceberg. The court’s decision in this respect has ushered a change, but the rainbow is yet to claim all its colours.[xxxi]

The right to adequate housing emanates from the Right to life and the Right to Equality. To fully realise rights, the legal framework and the administration must emulate the intent do so. The right to housing is a legal right originating from the constitution and constitutional morals.

To claim their right to housing, marginalised communities including the LGBTQIA+ persons, sex workers and Dalit women need to first claim their identity.

If the state invisiblizes their identity, either through law or bureaucratic insensitivity, no individual will be able to claim their rights.

The struggle for the right to housing is a struggle for human rights.

Some Breathing Space?

In October last year, the Supreme Court overturned the earlier judgement which narrowly and ‘wrongly’ interpreted the meaning of shared household in Section 2(s) of the PWDVA 2005.

The three-judge bench comprising Justices Ashok Bhushan, R Subhash Reddy and MR Shah, held that a woman living with her husband in premises belonging to his relatives has a right to claim residence in a “shared household”. The court advanced,

“It further held that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time”.

The bench demarcated that:

“The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share”.

Securing women right to adequate housing is one of the core points to be considered in light of domestic violence. Often victim’s emotional dependence over the abuser is a lot higher than the economic dependence, leading to the victim’s denial and further subjugation. The right to reside under PWDVA and the recent interpretation of the right is a ray of hope for many women. More responsible and effective implementation of the act can empower women to fight domestic violence against the fear of homelessness. One can only hope that the right to housing will be interpreted with a motive to promote momentum and change, this can only happen if the outcasted are recognised and protected.  

 

Illustration by iStock

[i] Houseless Population 2011. (n.d.). Retrieved from https://www.census2011.co.in/houseless.php 

[ii] World Cities Report 2016: Urbanization and Development – Emerging

Futures: UN-Habitat. (n.d.). Retrieved from https://unhabitat.org/world-cities-report 

[iii] Violence against women and girls: The shadow pandemic. (n.d.).Retrieved from https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic 

[iv] Dhamini Ratnam, “Domestic violence during

Covid-19 lockdown emerges as serious concern” Hindustan Times, April 26 2020,

available at https://www.hindustantimes.com/india-news/domestic-violence-during-covid-19-lockdown-emerges-as-serious-concern/story-mMRq3NnnFvOehgLOOPpe8J.html 

[v] Article 11(1), ICESCR. The ICESCR is a legally-binding international treaty to which India has been a party since 1979.

[vi]  A “forced eviction” is 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. ESCR Committee, General Comment No. 7: The right to adequate housing (Art.11.1): forced evictions, UN Doc. E/1998/22, (1997), para 3.

[vii] Chameli Singh v. Union of India,

(1996)2SCC549, para. 8 Supreme Court of India, Ahmedabad Municipal Corporation

  1. Nawab Khan Gulab Khan, (1997)11SCC121, para. 12.

[viii] Supreme Court of India, Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., 1986 AIR 180 48 High Court of Delhi, Ajay Maken v Union of India, W.P.(C) 11616/2015; Also, see, Housing and Land Rights Network, “Adjudicating the Human Right to Adequate Housing:

Analysis of Important Judgments from Indian High Courts,” (2019), https://www.hlrn.org.in/documents/Housing_Judgments_India.pdf 

[ix] Theleaflet.in. (2020, May 04). Delhi High Court issues directions to check domestic violence during Covid-19 lockdown.From https://www.theleaflet.in/delhi-high-court-issues-directions-to-check-domestic-violence-during-covid-19-lockdown/

[x] Violence against women and girls: The shadow pandemic. (n.d.).Retrieved from https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic 

[xi] Dhamini Ratnam, “Domestic violence during Covid-19 lockdown emerges as serious concern” Hindustan Times, April 26 2020, available at https://www.hindustantimes.com/india-news/domestic-violence-during-covid-19-lockdown-emerges-as-serious-concern/story-mMRq3NnnFvOehgLOOPpe8J.html 

[xii] COVID-19, Domestic Abuse and Violence: Where Do Indian Women

Stand? (2020, April 17). Retrieved from https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

[xiii] Violence Against Women Act Diminishes the Seriousness of Domestic Violence. (n.d.). Human Rights Documents Online. doi:10.1163/2210-7975_hrd-9813-2018007

[xiv]Anurag, P., Here, P., -, A., -, A., & -, R. (2019, June 14). But where will I live? The right to residence of domestic violence victims in India. Retrieved from https://theprint.in/pageturner/excerpt/but-where-will-i-live-the-right-to-residence-of-domestic-violence-victims-in-india/249526/ 

[xv] SUJATHA, D. (2014). Redefining Domestic Violence: Experiences of Dalit Women. Economic and Political Weekly, 49(47), 19-22. Retrieved from http://www.jstor.org/stable/24481021

[xvi] COVID-19, Domestic Abuse and Violence: Where Do Indian Women Stand? (2020, April 17). Retrieved from https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

[xvii] NewIndianXpress. (2020, July 07). Atrocities against Dalits see a rise. Retrieved from https://www.newindianexpress.com/cities/delhi/2020/jul/07/atrocities-against-dalits-see-a-rise-2166477.html 

[xviii] Surge in atrocities against Dalits and Adivasis under COVID-19 lockdown in India reported. (2020, June 15). Retrieved from https://idsn.org/surge-in-atrocities-against-dalits-and-adivasis-under-covid-19-lockdown-in-india-reported/

[xix] COVID-19 Pandemic in India. (n.d.). Retrieved from https://www.icj.org/wp-content/uploads/2020/06/India-Right-to-Housing-COVID19-Briefing-Paper-2020-ENG.pdf 

[xx] ESCR Committee, General Comment No. 4: The

right to adequate housing (article 11(1) of the Covenant), UN Doc. E/1992/23, (1991), para. 8(a).  213 ESCR Committee, General Comment No. 7: The right to adequate housing (Art.11.1): forced evictions, UN Doc. E/1998/22, (1997), para.3 defines 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 provision of and access to, appropriate forms of legal or other protection.” ESCR Committee, General Comment No. 4: The right to adequate housing (article 11(1) of the Covenant), UN Doc. E/1992/23, (1991), para. 17.;

See also Housing and Land Rights Network, “Bengaluru’s Continuing

Inequity: An Eviction Impact Assessment of Ejipura/Koramangala Four Years After

its Demolition,” 2017,

https://www.hlrn.org.in/documents/EvIA_Ejipura_Bengaluru.pdf (Accessed 12 May 2019); Housing and Land Rights Network, “From Deprivation to Destitution: The Impact of Forced Eviction in Topsia, Kolkata,” 2015, https://www.hlrn.org.in/documents/Deprivation_to_Destitution_Topsia_Eviction.pdf 

[xxi] High Court of Delhi, Sudama Singh v. Government of Delhi, WP © 7735/2007, WP (C) 7317, 8904 and 9246/2009, para. 44.

[xxii]  For example, see DRA, Section 22(m); the DRA explicitly mentions that undertaking an activity prohibited by the ITPA would amount to having caused nuisance on the premises and thus be a valid ground for eviction. See also, KRA, Section 27(m); PRA, Section 20(l); Draft Model Tenancy Act 2015, Section 21(2)(d

[xxiii] 8 DRA, Sections 4 and 22; KRA, Section 5; PRA, Section 5.

[xxiv] Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018).

[xxv] LGBTQI+ right to housing in the United States. (2019, February 07). Retrieved from https://socialprotection-humanrights.org/legaldep/lgbtqi-right-to-housing-in-the-united-states/ 

[xxvi] International Commission of Jurists, “Living with Dignity – Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India ”, 2019, page 31, available at https://www.icj.org/wpcontent/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report2019-ENG.pdf

[xxvii] “UN chief calls for domestic violence ‘ceasefire’ amid ‘horrifying global surge’”, UN News, 6 April 2020, available at https://news.un.org/en/story/2020/04/1061052

[xxviii] Correspondent, S. (2020, September 12). Crimes against Dalits

increased by 6 percent between 2009 and 2018: Report. Retrieved from https://www.thehindu.com/news/national/report-flags-increase-in-crimes-against-dalits/article32584803.ece

[xxix]  COVID-19, Domestic Abuse and Violence: Where Do Indian Women Stand? (2020, April 17). Retrieved from https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do 

[xxx] Bhanot, P. (2020, July 17). How Sex Workers In Delhi’s Red Light Area Are Braving More Than Just A Pandemic. Retrieved  from https://www.shethepeople.tv/top-stories/issues/lockdown-affected-sex-workers-delhi/

Bureau, E. (2020, June 29). 400,000 infections, 12,000 deaths in red light areas due to COVID-19 in one year if reopened: Code Red COVID projection. Retrieved October 11, 2020, from https://www.expresshealthcare.in/covid19-updates/400000-infections-12000-deaths-in-red-light-areas-due-to-covid-19-in-one-year-if-reopened-code-red-covid-projection/422384/

[xxxi] International Commission of Jurists, “Living with Dignity – Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India ”, 2019, page 31, available at https://www.icj.org/wpcontent/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report2019-ENG.pdf 

 

 

 

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