Evictions and participation rights in India and South Africa

Thesis

India and South Africa are deeply unequal societies, including in terms of access to housing. This thesis explores the role for participation rights to enable oppressed communities to access adequate housing, by participating in decision-making around evictions. The arguments are structured around a specific context – forced evictions in India and South Africa – but have wider application.

This thesis engages with four puzzles regarding the right to housing, adopting theoretical, doctrinal and comparative analysis: (i) the nature and content of participation elements of the right to housing; (ii) the content of other substantive elements; (iii) the relationship between participation and other substantive elements of the right to housing; (iv) and the appropriate role for courts.

The thesis challenges the characterisation of participation rights as procedural, and argues that these embody substantive values underlying human rights – freedom, dignity and equality. It relies on these values to develop the content of participation rights, filling gaps in existing legal doctrine.

The thesis proposes a way to settle the relationship between participation rights, other substantive elements of rights, and courts. It carves out a valuable role for participation rights to develop the content of other elements of the right to housing. Simultaneously, it fashions a role for courts to interpret and enforce substantive normative commitments underlying the right to housing. It envisages the iterative development of other substantive elements of the right to housing. Firstly, the content of substantive elements of the right to housing ought to be developed through the process of participation between residents of informal settlements, the state, and private duty bearers. Secondly, courts ought to check that the process of participation meets relevant criteria, and thereafter that the outcome of participation meets substantive normative constitutional commitments.

The thesis contributes to the literature on social rights, participation rights, judicial review, and deliberative democracy. It is likely to be of interest to scholars, activists, judges and lawyers working in these fields.

Authors: Sahgal, R

• DOI: 10.5287/ora-m8j9k9dpj
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: evictions; economic and social rights; human rights; India; judicial review; participation; equality; right to housing; South Africa; constitutional law; public interest litigation; deliberative democracy
• Subjects: Social rights; Democracy; Law; Economic rights