“Things you take for granted someone else is praying for.”[1]
Society often tends to sweep tiring issues under the rug with a hope that the problem, “out of sight”, will soon be “out of mind”. Experiences, on the other hand, show otherwise. No doubt, though, the out of sight approach may provide a temporary reprieve from imminent need of dealing with such smoldering ambers, however, sooner or later, society is bound to face the resultant monstrosity, which years of neglect may breed. One such issue, quite evident and often pitied, though till date, lacking proper redress is that of homelessness. Homelessness thrives on societal disregard and apathy of government bodies and people-in-charge to take initiatives to tackle this menace. No doubt this issue is a black mark on any society which prides itself as a welfare State and goes anti-thesis to the principles of inclusive growth and upliftment of all, often treated as a foundation of any democratic State.
The demon of homelessness has plagued the countries throughout the world. This problem is rampant not only in the developed countries, rather, has severely infested several developing countries like our own India. According to the census of 2011[2], there were then, more than 1.7 million (seventeen lakhs) homeless residents in India, of which 9,38,384 (Nine Lakhs Thirty Eight Thousand Three Hundred and Eighty Four) were, at that time, located in urban areas. Unfortunately, there are no recent updates on the number and size of homeless population in India, though it is largely believed that even at that point in time, the figures of homeless population, were grossly underestimated. The gravity of the issue of homelessness surges several-fold, with a lack of statutory mechanism and legislative guidelines/policies to slaughter this demon. Existence of archaic laws, which often tend to reprimand the ‘so-called perpetrators’ rather, to determine the root cause and provide comfort to those under its clutches, adds to hardships.
Article 21[3] of the Constitution of India (“the Constitution”) confers on all, right to life and personal liberty. It is settled law[4], such right to life includes right to live with human dignity and all that goes along with it, including the bare necessities of life such as adequate nutrition, clothing, shelter, facilities for expressing oneself in diverse forms, free movement, etc. Article 21 of the Constitution, in other words, seeks to ensure not merely a physical or animal existence, rather, it includes the right to life with human dignity. As a corollary, it can be reasonably assumed that right to home/housing goes in tandem with the spirit of Article 21 of the Constitution and that homelessness goes converse with the provisions of the said article.
Unfortunately, there are no laws in India dealing exclusively, with the issue of homelessness. Despite this, certain provisions exist under Part IV of the Constitution[5], providing guiding principles for the State to apply while enacting laws. Significant amongst the same being the provisions of Articles 38 and 39 of the Constitution, obliging the State to endeavour to promote welfare of the people and minimise inequality and to ensure, inter alia, distribution of ownership and control of material resources for common good; operation of economic system in a manner to avoid concentration of wealth and means of production to common detriment, etc., respectively.
One of the preliminary legislative steps in the direction of amelioration of the conditions of the homeless in India was the Homeless Pavement Dwellers (Welfare) Bill, 2011[6] (“the 2011 Bill”), which was introduced in the Rajya Sabha on December 7, 2012. The said Bill, inter alia, defined the term “pavement dweller”[7] to include, “persons living on the pavement of roads or footpaths, under the bridges, flyovers, bus stops, railway stations or yards, in parks or under the open sky in any public place in the metros and urban area.” Further, under Section 3 of the 2011 Bill, an obligation was cast on the Central Government to formulate[8] a national welfare policy for the poor homeless pavement dwellers, to be uniformly implemented across the country. Such welfare policy, as per the said Bill, was to provide for, inter alia, recognition of the right to live on pavements of the dwellers until alternative shelter is made available; humanitarian approach towards their homelessness; necessary healthcare facilities; construction of sufficient numbers of night shelters; free food, twice a day; facility of bed-sheet, blanket; etc. Obligation to provide funds and to pass necessary/requisite orders to remove difficulties was, as per Sections 4 and 5 respectively, of the 2011 Bill, to vest with the Central Government. Section 6 of the said Bill further envisaged an overriding effect to the provisions of the 2011 Bill and the Rules made thereunder (in terms of Section 7) to “anything inconsistent therewith contained in any other law for the time being in force but save as aforesaid the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force regulating any of the matter dealt within this Act”. Unfortunately, the said Bill could not be adopted as an Act.
Subsequently, the 2011 Bill, with certain modifications, was re-introduced in Parliament as the Homeless Pavement Dwellers (Welfare) Bill, 2014 [9](“the 2014 Bill”) and the Homeless Pavement Dwellers (Welfare) Bill, 2016[10] (“the 2016 Bill”). However, each time, the same could not assume a statutory form. Pertinently, in the year 2016, the Ministry of Social Justice and Empowerment prepared a draft (as State legislation) on the Persons in Destitution (Protection, Care and Rehabilitation) Model Bill, 2016 (“the Model Bill”), inter alia, including homelessness and homeless person under the definition of terms, “Destitution” [Section 2(1) of the Model Bill] and “Person in destitution” [Section 2(2) of the Model Bill], respectively and obliging the State(s) to develop and adopt mechanisms for upliftment of such individuals. Unfortunately the said Model Bill was also not adopted/enacted by any of the State Governments, till date.
Despite the absence of standalone laws dealing with homelessness, certain provisions exist under the Mental Healthcare Act, 2017, inter alia, to ensure free health treatment and services[11] to homeless persons with mental illness; provide right to community living[12] to such persons/patients; casting obligation on officer in-charge of the police station concerned[13] to lodge a first information report of missing persons, in case a person with mental illness, who is homeless or found wandering in community; etc.
Indian judiciary has also taken pro-active steps to understand and appreciate the plight of homeless and to provide a certain degree of respite to such individuals. In one of the earlier proceedings[14] brought before the Supreme Court, highlighting the distressing conditions of people living on the streets in Delhi, the officials concerned on behalf of the Delhi Administration, expressed willingness of the Government[15] to inter alia, provide shelters to homeless on a priority basis along with basic amenities, such as blankets, water, mobile toilets, etc. and make necessary arrangements for apprising the beneficiaries about the location of such shelter homes. The progress on such commitments was, thereafter, thoroughly monitored by the Court and further directions were issued, from time to time. In one such instance[16], the Supreme Court, while noting that right to shelter was included within the right to life, under Article 21 of the Constituting, held, “The State owes to the homeless people to ensure at least minimum shelter as part of the State obligation under Article 21.” Accordingly, the Court directed several States[17] to, inter alia, identify and indicate the buildings for their conversion into night shelters; carry out joint inspection of the existing night shelters and submit report thereon; etc. Similarly, in Ashwani Kumar v. Union of India[18], the Court reiterated that the right to shelter amounted to an important constitutional right and that the same must be made available to everybody and to the maximum extent possible.
Pursuant to the proceedings[19] before the Supreme Court, the National Urban Livelihoods Mission (“NULM”) developed a Scheme of Shelters for Urban Homeless (“the Scheme”) in the year 2013, with an object, inter alia, to ensure availability and access of the urban homeless population to permanent shelters including the basic infrastructure facilities; cater to the needs of especially vulnerable segments of the urban homeless; provide access to various entitlements, such as; social security pensions, education, affordable housing etc., for homeless population, etc. Pertinently, the Scheme, obliged the Government of India/Central Government to fund 75% of the cost of construction of the shelter homes and for the remaining 25% contribution, the States and Union Territories were obliged. Subsequently, based on the said Scheme, handbook for administrators and policy makers, titled, Shelters for the Urban Homeless (“the Handbook”), was prepared. The implementation and progress made by the States pursuant to the directives of the Scheme were scrutinised by the Supreme Court in E.R. Kumar v. Union of India[20], wherein the Court while expressing its dissatisfaction on the lack of States’ initiatives, constituted a Committee[21] to, inter alia, “inquire about the non-utilisation and/or diversion/misutilisation of the funds allocated for the Scheme for providing shelters to the urban homeless.”
Considering an ancillary problem of begging, fairly relatable to poverty and to a degree to homelessness, the High Court of Delhi[22], recently, struck down certain provisions of the Bombay Prevention of Begging Act, 1959 as unconstitutional, which declared begging as an offence. In this regard, the Court opined, “Criminalising begging is a wrong approach to deal with the underlying causes of the problem. It ignores the reality that people who beg are the poorest of the poor and marginalised in society. Criminalising begging violates the most fundamental rights of some of the most vulnerable people in our society. People in this stratum do not have access to basic necessities such as food, shelter and health, and in addition criminalising them denies them the basic fundamental right to communicate and seek to deal with their plight.”
The United Nations/UN has acknowledged[23] homelessness as a global problem, affecting people with diverse economic, social and cultural backgrounds, in both developed and developing countries. As per the UN, “Addressing homelessness requires comprehensive, inter-sectoral policy frameworks and rights-based housing strategies, in alignment with the 2030 Agenda for Sustainable Development…” Accordingly, as UN’s strategy aimed towards, inter alia, providing affordable housing policies to prevent homelessness/destitution etc. as well as, support to people experiencing homelessness and developing social protection policies[24], etc.
Global estimates suggest that a majority of homeless, suffer from one or the other form of mental ailments and/or substance abuse. Further, a majority of such mentally ill and/or drug addicts, ultimately fall a prey to death. It is also not unknown that a vast percentage of homeless women and girls live in extreme insecurity and suffer the worst kinds of violence, including sexual assault, rape, trafficking, etc. A vast majority of homeless children, differently abled and mentally ill patients, further, become victims to rackets forcing them into exploitative behaviors such as beggary, theft, etc. This situation becomes grave as a large number of such people often go unreported and are often shrugged away with disregard and apathy. Further, conditions of economic breakdown and lockdown of resources, affect more such individuals than those enjoying privilege. Lack of proper laws, existence of rudimentary provision under certain enactments and non-binding nature of the rules/guidelines envisaged under the Scheme and Handbook, coupled with the lackadaisical attitude of executive machinery to adopt and enact strict provisions, enhances the gravity of their plight several fold.
A country like ours, which prides on being a social welfare State cannot remain oblivious to the plight of its people who are forced to live in inhumane and deplorable conditions. Plight, though, even be of a minor sect or an individual, which degrades such minority or individual to degrading treatment and deprives them of basic human rights, strikes at the core of our country’s Constitution. Enactment and effective implementation of laws is the need of the hour. Time is also ripe for the States to strictly abide by make genuine endeavours to best utilise the existing mechanisms, unless a proper law is put in place. There is an equal need for compassion, want and care, both by those in authority and individuals towards such homeless, who might have even otherwise, abandoned all hopes of a good life and future. As Mother Teresa once said, “We think sometimes that poverty is only being hungry, naked and homeless. The poverty of being unwanted, unloved and uncared for is the greatest poverty.”
*Managing Associate, L&L Partners Law Offices
**Managing Associate, L&L Partners Law Offices
[1] Marlan Rico Lee
[2] Housing and Land Rights Network (https://www.hlrn.org.in/homelessness)
[3] 21. Protection of life and personal liberty.–No person shall be deprived of his life or personal liberty except according to procedure established by law.
[4] Francis Coralie Mullin v. Administrator, Union Territory of Delhi , (1981) 1 SCC 608 ; Chameli Singh v. State of UP, (1996) 2 SCC 549 ; CESC Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441
[5] Directive Principles of State Policy
[6] Homeless Pavement Dwellers (Welfare) Bill, 2011
[7] Section 2(b) of the Homeless Pavement Dwellers (Welfare) Bill, 2011
[8] “in consultation with the Governments of the States and Union Territory Administrations, as soon as may be, but within one year of the commencement of this Act”
[9] Homeless Pavement Dwellers (Welfare) Bill, 2014 [Introduced in Rajya Sabha on November 28, 2014]
[10] Homeless Pavement Dwellers (Welfare) Bill, 2016 [Introduced in Lok Sabha on February 26, 2016]
[11] Section 18(7) of the Mental Healthcare Act, 2017
[12] Section 19 of the Mental Healthcare Act, 2017
[13] Section 100 of the Mental Healthcare Act, 2017
[14] People’s Union for Civil Liberties v. Union of India, (2010) 5 SCC 423
[15] Ibid
[16] People’s Union for Civil Liberties v. Union of India, (2014) 15 SCC 327, at p. 328
[17] Andhra Pradesh, Bihar, Gujarat, Jharkhand, Madhya Pradesh, Maharashtra, West Bengal, Uttar Pradesh, Tamil Nadu, etc.
[18] (2019) 2 SCC 636
[19] Proceedings in People’s Union for Civil Liberties v. Union of India,(2010) 5 SCC 423
[20]. (2017) 12 SCC 779
[21] Matter is still pending adjudication before the Supreme Court
[22] Harsh Mander v. UoI, 2018 SCC OnLine Del 10427
[23] Affordable housing and social protection systems for all to address homelessness – United Nations Economic and Social Council, dated November 27, 2019.
[24] “Homelessness should not be seen as a personal failure, but a societal one….Social assistance, housing benefits, unemployment protection, long-term care and old-age pensions can address specific risk factors. Moreover, social protection systems, by guaranteeing at least a basic level of income security and effective access to health care, can help to prevent people from falling into homelessness.”
Image Credits: careerandrecovery.org