By Shefali Chawla
Introduction
During my visit to the shelter being run by the Earth Saviours Foundation at Bandhwari village, on the outskirts of Gurugram, India, I came across various senior citizens, mentally/physically disabled people and persons suffering from incurable diseases who had been abandoned and left on the streets by their respective families and subsequently rescued by the Earth Saviours Foundation. The visit provoked me to undertake research on the rights of homeless individuals who have been abandoned by their own families.
In this Article, I analyse the universal right to housing and its applicability to India. I go on to discuss how homelessness is the most abrasive form of violation of the universal human right to housing. Based on my study of the existent legal framework in India, I conclude that there exist absolutely no laws to penalise families that abandon individuals above the age of twelve years and under the age of sixty years (“the 12-60 Age Bracket”) who may have been abandoned as a consequence of disability, disease, widowhood or any other circumstances beyond their control.
While I recognize that the international human rights framework only imposes obligations on the states to respect, protect and fulfil human rights, I argue that to fully effectuate the right to housing, the aforesaid obligation on the states must also include within its ambit the duty to frame laws that penalize such citizens who are responsible for the care of such abandoned individuals.
The Universal Right to Housing and its Justiciability in India
Article 25 (1) of the Universal Declaration of Human Rights, 1948 (“UDHR”) stipulates that
“Everyone has the right to a standard of living adequate for health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
It may be inferred that article 25 enshrines the right to a standard of living adequate for health and well-being, within which right to housing is recognized as an element essential to realise the aforesaid right.
Similarly, article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) also codifies the right to housing and stipulates as follows – “The State 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………”
While, the Constitution of India does not expressly enshrine any Fundamental Right to shelter or housing, by way of a number of judicial pronouncements, including State of Karnataka v. Narasimhamurthy & Ors. and Rakesh Yadav & Anr. v. State of U.P. , the Supreme Court has recognised that the right to housing and shelter are included within the meaning of Right to Life under Article 21 of the Constitution of India .
Given that, India has ratified the UDHR and the ICESCR, India recognises the right to an adequate standard of living including the right to housing for its citizens. By way of a number of landmark judgments, the apex court of the country has also recognised the right to shelter or housing to be included within the meaning of Right to Life embodying a constitutional value of supreme importance.
Homelessness’ and the Right to Housing
In the report of the United Nations Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living (“Report”) , it was asserted that “homelessness is prima facie violation of the right to housing and violates a number of other human rights in additional to the right to life…..”.
In the report of the United Nations High Commissioner for Human Rights on the Right to Adequate Housing (“UNHC Report”) , it was recognized that the most commonly used definitions of ‘homelessness’ carry with themselves an element of social exclusion underlining that homelessness carries implications of belonging nowhere rather than simply having nowhere to sleep. The Report also notes that the notion of ‘home’ is associated with belonging, identity and family. The UNHC Report highlights that a number of legal instruments at the regional level, including the European Convention on Promotion of Human Rights and Fundamental Freedoms, 1950, the European Social Charter, 1961, the American Convention on Human Rights, 1969 and the African Charter on Human and Peoples’ Rights, 1981 do not explicitly refer to the right to adequate housing, in the jurisprudence its protection has derived from the enjoyment of other human rights, including inter alia protection of the family and hence, it may be deduced that customary international law recognizes the right to adequate housing and right to protection of family as inter-connected rights.
In fact, even sociological research indicates that family life is a vital component of the concept of housing. Case in point being, an article titled ‘Sociological Aspects of Housing’ published by The American Journal of Public Health which notes that definition a house given by the lexicographer, itself indicates that housing should not be considered merely as a form of shelter against the ravages of the elements, but must be thought of in so far as it fulfils its purpose of serving as a home or place of work for thinking, active, living human beings which is conducive to the development of a normal family life.
Various research, including India’s response to the Special Rapporteur on the Right to Adequate Housing – Questionnaire on Homelessness (“Questionnaire Response”), records that erosion of family support, disability, family abuse, stigmatization of illness, abandonment by family are among the primary systematic and structural causes of homelessness in India. Needless to say that as an effect of the same, homeless people have an extreme social disadvantage including lack of psychological support from family and in that sense, making homelessness a complex social and public health phenomenon. In effect, while family abandonment is regarded as a cause of homelessness, the absence of family has various sociological, psychological and physiological consequences on those who are homeless.
Case in point, being the widows of Vrindavan, imploring family support are willfully abandoned by their families for multifarious reasons including superstition and social stigmatization and forced to live in the ashrams and shelter homes in the city of Vrindavan. Another example- disabled persons requiring special care and support from family have been most susceptible to being disowned by their family members.
It may be deduced from the aforesaid that legally speaking, homelessness is regarded as a violation of the human right to shelter and housing, the aforesaid violation envisages within its ambit not only ‘houselessness’ or absence of a roof but the absence of belonging, identity, and family. From the perspective of sociology, the various facets homelessness, including its causes, the conception of homelessness as an abstract concept and the consequences associate profoundly with family.
India and an Inadequate Legal Framework to address Homelessness
Section 317 of the Indian Penal Code, 1860 (“IPC”) penalizes, the father, mother or any person who exposes or leaves a child under twelve in any place with the intention of wholly abandoning the child, with imprisonment of 7 years or with a fine, or with both.
Under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (“Senior Citizens Act”), a senior citizen including a parent who is unable to maintain himself from his own earning or property owned by him may make an application before the Maintenance Tribunal constituted under the Senior Citizens Act for provision of such maintenance ,so that the senior citizen/ parent may lead a normal life. It is important to note that the aforesaid Act defines ‘senior citizen’ to mean any person being a citizen of India, who has attained the age of 60 years or above and defines ‘parent’ to mean the father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. However, the Senior Citizens Act also penalizes, persons who, having to care or protect a senior citizen, leaves such a senior citizen in any place with the intention of wholly abandoning them, with either imprisonment of a maximum period of 3 three months or a fine which may extend to Indian Rupees Five Thousand or with both. In effect, while the Senior Citizens Act entitles all parents irrespective of their age to the basic necessities of life including food, clothing, residence and medical care from the persons responsible for their care by way of making an application before the Maintenance Tribunal, it does not entitle such persons to a “home” as it is conceptualized in various literature for the wholesome mental and physical well-being of such a person. On the other hand, since the Senior Citizens Act penalizes people abandoning senior citizens, it in effect, deters families of senior citizens from deserting them and completely ousting them from their respective homes.
In relation to the laws against abandonment of disabled persons, the law is found in section 9 of the Rights of Persons with Disabilities Act, 2016 (“Disabilities Act”). Section 9(1) of the aforesaid act stipulates that a child with disability may only be separated from his or her parents on the grounds of disability by way of an order of a competent court in the best interest of such a disabled child. Section 9 (2) further goes on to state that, in circumstances where the parents are unable to take care of a child with disability, he/she may either be placed by his or near relations or within a community in a family setting or a shelter home. The Disabilities Act also mandates the National Legal Services Authority and the State Legal Services Authorities to make provisions for reasonable accommodation of disabled persons.
Aside from the aforesaid, there are no statutes or legal regulations penalising or addressing the abandonment and consequent homelessness of Indian citizens.
It may be understood, from reading of the aforesaid laws that the IPC and the Senior Citizens Act penalise and make punishable by way of imprisonment and fine, the abandonment and consequently rendering children and senior citizens, respectively, homeless. The Disabilities Act stipulates no such penalty for the abandonment of disabled person but only places an obligation on the competent court to not pass orders that could separate a child with disability from his parents. In conclusion, it may be reiterated that within the 12-60 age bracket, there are no punitive laws against abandonment (which may range from abandonment for causes of incurable disease, disability, sickness or widowhood) and no legal consequences ensue towards such families who abandon individuals.
Conclusion
I conclude that since homelessness, which is a violation of the right to housing at its most basic level, links so profoundly with the concepts of belonging, identity and family – the legal framework in India should at least extend an obligation towards and impose criminal liability against such families who with the intention of wholly abandoning other persons leave them in any place so as to relinquish responsibility for such abandoned individuals. The rationale behind why the liability should be criminal liability and not just civil liability is twofold-
For one, criminal liability is already envisaged in Indian law for abandonment of individuals in a certain age bracket, that is, children below the age of twelve years and for persons above the age of sixty years, it does not appear reasonable to neglect the insertion of such liability for persons within the 12-60 Age Bracket, as even people within the aforesaid bracket are susceptible to being abandoned for reasons of disease, disability, widowhood, lack of livelihood or any other alike reason and hence, to accord similar treatment to all persons susceptible to being abandoned.
For the second, civil liability may be successful in addressing the immediate monetary needs of an abandoned individual, however, may not fulfil effectively the individual’s need to be in a family which is regarded as an intrinsic aspect of the right to housing.
The author Shefali Chawla, is a graduate of National Law Institute University, (NLIU) Bhopal and is currently an associate at Saraf and Partners.
Article 25(1), Universal Declaration of Human Rights, 1948.
Article 11(1), International Covenant on Economic, Social and Cultural Rights, 1966.
1996 AIR 90, 1995 SCC (5) 524.
2019 SCC All 2555.
Article 21, Constitution of India, 1950.
Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, February 24, 2020 – March 20, 2020, U.N. General Assembly, Official Record, Sess. 43, A/HRC/43/43,7, (26.12.2019), , last seen on 03/09/2022.
The Right to Adequate Housing, United Nations High Commissioner for Human Rights, Fact Sheet No. 21/ Rev. 1, 22, available at , last seen on 03/09/2022.
Ibid.
Ira S. Wile, Sociological Aspects of Housing, 10 (4), American Journal of Public Health, 327 – 331, 327 (1920).
Special Rapporteur on the Right to Adequate Housing, Questionnaire on Homelessness, Response from Housing and Land Rights Network, India, available at , last seen on 30/09/2022.
Mzwandile A. Mabhala, Asmait Yohannes, Mariska Griffith, Social conditions of becoming homeless: qualitative analysis of life stories of homeless peoples,16, International Journal for Equity in Health (2022).
National Commission for Women, Government of India, Study on Widows At Vrindavan, , last seen on 30/09/2022.
The History of India’s Disability Rights Movement, The Diplomat, , last seen on 30/09/2022.
S. 317, Indian Penal Code, 1860.
Section 2 (b) of the Senior Citizens Act defines ‘maintenance’ to include provision for food, clothing, residence and medical attendance and treatment.
Section 12(3), Rights of Persons with Disabilities Act,2016.
Introduction
During my visit to the shelter being run by the Earth Saviours Foundation at Bandhwari village, on the outskirts of Gurugram, India, I came across various senior citizens, mentally/physically disabled people and persons suffering from incurable diseases who had been abandoned and left on the streets by their respective families and subsequently rescued by the Earth Saviours Foundation. The visit provoked me to undertake research on the rights of homeless individuals who have been abandoned by their own families.
In this Article, I analyse the universal right to housing and its applicability to India. I go on to discuss how homelessness is the most abrasive form of violation of the universal human right to housing. Based on my study of the existent legal framework in India, I conclude that there exist absolutely no laws to penalise families that abandon individuals above the age of twelve years and under the age of sixty years (“the 12-60 Age Bracket”) who may have been abandoned as a consequence of disability, disease, widowhood or any other circumstances beyond their control.
While I recognize that the international human rights framework only imposes obligations on the states to respect, protect and fulfil human rights, I argue that to fully effectuate the right to housing, the aforesaid obligation on the states must also include within its ambit the duty to frame laws that penalize such citizens who are responsible for the care of such abandoned individuals.
The Universal Right to Housing and its Justiciability in India
Article 25 (1) of the Universal Declaration of Human Rights, 1948 (“UDHR”) stipulates that
“Everyone has the right to a standard of living adequate for health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
It may be inferred that article 25 enshrines the right to a standard of living adequate for health and well-being, within which right to housing is recognized as an element essential to realise the aforesaid right.
Similarly, article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) also codifies the right to housing and stipulates as follows – “The State 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………”
While, the Constitution of India does not expressly enshrine any Fundamental Right to shelter or housing, by way of a number of judicial pronouncements, including State of Karnataka v. Narasimhamurthy & Ors. and Rakesh Yadav & Anr. v. State of U.P. , the Supreme Court has recognised that the right to housing and shelter are included within the meaning of Right to Life under Article 21 of the Constitution of India .
Given that, India has ratified the UDHR and the ICESCR, India recognises the right to an adequate standard of living including the right to housing for its citizens. By way of a number of landmark judgments, the apex court of the country has also recognised the right to shelter or housing to be included within the meaning of Right to Life embodying a constitutional value of supreme importance.
Homelessness’ and the Right to Housing
In the report of the United Nations Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living (“Report”) , it was asserted that “homelessness is prima facie violation of the right to housing and violates a number of other human rights in additional to the right to life…..”.
In the report of the United Nations High Commissioner for Human Rights on the Right to Adequate Housing (“UNHC Report”) , it was recognized that the most commonly used definitions of ‘homelessness’ carry with themselves an element of social exclusion underlining that homelessness carries implications of belonging nowhere rather than simply having nowhere to sleep. The Report also notes that the notion of ‘home’ is associated with belonging, identity and family. The UNHC Report highlights that a number of legal instruments at the regional level, including the European Convention on Promotion of Human Rights and Fundamental Freedoms, 1950, the European Social Charter, 1961, the American Convention on Human Rights, 1969 and the African Charter on Human and Peoples’ Rights, 1981 do not explicitly refer to the right to adequate housing, in the jurisprudence its protection has derived from the enjoyment of other human rights, including inter alia protection of the family and hence, it may be deduced that customary international law recognizes the right to adequate housing and right to protection of family as inter-connected rights.
In fact, even sociological research indicates that family life is a vital component of the concept of housing. Case in point being, an article titled ‘Sociological Aspects of Housing’ published by The American Journal of Public Health which notes that definition a house given by the lexicographer, itself indicates that housing should not be considered merely as a form of shelter against the ravages of the elements, but must be thought of in so far as it fulfils its purpose of serving as a home or place of work for thinking, active, living human beings which is conducive to the development of a normal family life.
Various research, including India’s response to the Special Rapporteur on the Right to Adequate Housing – Questionnaire on Homelessness (“Questionnaire Response”), records that erosion of family support, disability, family abuse, stigmatization of illness, abandonment by family are among the primary systematic and structural causes of homelessness in India. Needless to say that as an effect of the same, homeless people have an extreme social disadvantage including lack of psychological support from family and in that sense, making homelessness a complex social and public health phenomenon. In effect, while family abandonment is regarded as a cause of homelessness, the absence of family has various sociological, psychological and physiological consequences on those who are homeless.
Case in point, being the widows of Vrindavan, imploring family support are willfully abandoned by their families for multifarious reasons including superstition and social stigmatization and forced to live in the ashrams and shelter homes in the city of Vrindavan. Another example- disabled persons requiring special care and support from family have been most susceptible to being disowned by their family members.
It may be deduced from the aforesaid that legally speaking, homelessness is regarded as a violation of the human right to shelter and housing, the aforesaid violation envisages within its ambit not only ‘houselessness’ or absence of a roof but the absence of belonging, identity, and family. From the perspective of sociology, the various facets homelessness, including its causes, the conception of homelessness as an abstract concept and the consequences associate profoundly with family.
India and an Inadequate Legal Framework to address Homelessness
Section 317 of the Indian Penal Code, 1860 (“IPC”) penalizes, the father, mother or any person who exposes or leaves a child under twelve in any place with the intention of wholly abandoning the child, with imprisonment of 7 years or with a fine, or with both.
Under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (“Senior Citizens Act”), a senior citizen including a parent who is unable to maintain himself from his own earning or property owned by him may make an application before the Maintenance Tribunal constituted under the Senior Citizens Act for provision of such maintenance ,so that the senior citizen/ parent may lead a normal life. It is important to note that the aforesaid Act defines ‘senior citizen’ to mean any person being a citizen of India, who has attained the age of 60 years or above and defines ‘parent’ to mean the father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. However, the Senior Citizens Act also penalizes, persons who, having to care or protect a senior citizen, leaves such a senior citizen in any place with the intention of wholly abandoning them, with either imprisonment of a maximum period of 3 three months or a fine which may extend to Indian Rupees Five Thousand or with both. In effect, while the Senior Citizens Act entitles all parents irrespective of their age to the basic necessities of life including food, clothing, residence and medical care from the persons responsible for their care by way of making an application before the Maintenance Tribunal, it does not entitle such persons to a “home” as it is conceptualized in various literature for the wholesome mental and physical well-being of such a person. On the other hand, since the Senior Citizens Act penalizes people abandoning senior citizens, it in effect, deters families of senior citizens from deserting them and completely ousting them from their respective homes.
In relation to the laws against abandonment of disabled persons, the law is found in section 9 of the Rights of Persons with Disabilities Act, 2016 (“Disabilities Act”). Section 9(1) of the aforesaid act stipulates that a child with disability may only be separated from his or her parents on the grounds of disability by way of an order of a competent court in the best interest of such a disabled child. Section 9 (2) further goes on to state that, in circumstances where the parents are unable to take care of a child with disability, he/she may either be placed by his or near relations or within a community in a family setting or a shelter home. The Disabilities Act also mandates the National Legal Services Authority and the State Legal Services Authorities to make provisions for reasonable accommodation of disabled persons.
Aside from the aforesaid, there are no statutes or legal regulations penalising or addressing the abandonment and consequent homelessness of Indian citizens.
It may be understood, from reading of the aforesaid laws that the IPC and the Senior Citizens Act penalise and make punishable by way of imprisonment and fine, the abandonment and consequently rendering children and senior citizens, respectively, homeless. The Disabilities Act stipulates no such penalty for the abandonment of disabled person but only places an obligation on the competent court to not pass orders that could separate a child with disability from his parents. In conclusion, it may be reiterated that within the 12-60 age bracket, there are no punitive laws against abandonment (which may range from abandonment for causes of incurable disease, disability, sickness or widowhood) and no legal consequences ensue towards such families who abandon individuals.
Conclusion
I conclude that since homelessness, which is a violation of the right to housing at its most basic level, links so profoundly with the concepts of belonging, identity and family – the legal framework in India should at least extend an obligation towards and impose criminal liability against such families who with the intention of wholly abandoning other persons leave them in any place so as to relinquish responsibility for such abandoned individuals. The rationale behind why the liability should be criminal liability and not just civil liability is twofold-
For one, criminal liability is already envisaged in Indian law for abandonment of individuals in a certain age bracket, that is, children below the age of twelve years and for persons above the age of sixty years, it does not appear reasonable to neglect the insertion of such liability for persons within the 12-60 Age Bracket, as even people within the aforesaid bracket are susceptible to being abandoned for reasons of disease, disability, widowhood, lack of livelihood or any other alike reason and hence, to accord similar treatment to all persons susceptible to being abandoned.
For the second, civil liability may be successful in addressing the immediate monetary needs of an abandoned individual, however, may not fulfil effectively the individual’s need to be in a family which is regarded as an intrinsic aspect of the right to housing.
The author Shefali Chawla, is a graduate of National Law Institute University, (NLIU) Bhopal and is currently an associate at Saraf and Partners.
Article 25(1), Universal Declaration of Human Rights, 1948.
Article 11(1), International Covenant on Economic, Social and Cultural Rights, 1966.
1996 AIR 90, 1995 SCC (5) 524.
2019 SCC All 2555.
Article 21, Constitution of India, 1950.
Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, February 24, 2020 – March 20, 2020, U.N. General Assembly, Official Record, Sess. 43, A/HRC/43/43,7, (26.12.2019), , last seen on 03/09/2022.
The Right to Adequate Housing, United Nations High Commissioner for Human Rights, Fact Sheet No. 21/ Rev. 1, 22, available at , last seen on 03/09/2022.
Ibid.
Ira S. Wile, Sociological Aspects of Housing, 10 (4), American Journal of Public Health, 327 – 331, 327 (1920).
Special Rapporteur on the Right to Adequate Housing, Questionnaire on Homelessness, Response from Housing and Land Rights Network, India, available at , last seen on 30/09/2022.
Mzwandile A. Mabhala, Asmait Yohannes, Mariska Griffith, Social conditions of becoming homeless: qualitative analysis of life stories of homeless peoples,16, International Journal for Equity in Health (2022).
National Commission for Women, Government of India, Study on Widows At Vrindavan, , last seen on 30/09/2022.
The History of India’s Disability Rights Movement, The Diplomat, , last seen on 30/09/2022.
S. 317, Indian Penal Code, 1860.
Section 2 (b) of the Senior Citizens Act defines ‘maintenance’ to include provision for food, clothing, residence and medical attendance and treatment.
Section 12(3), Rights of Persons with Disabilities Act,2016.