The first question that we are faced with when we think about defining a legal right to housing is: what legal instrument are we defining it for? In India, when we speak of a legal right, we are referring to one or more of three possibilities in a hierarchy of rights: a fundamental right, which is a constitutional right listed in Part III of the Constitution; a constitutional right, which is a right listed anywhere else in the Constitution (outside of Part III); or a statutory right, which is a right established by statutory law enacted by the legislative bodies at the Centre or any of the states. Each of these three sorts of legal rights comes associated with an existing jurisprudence, and certain possibilities and limitations in terms of what it can achieve and what sorts of remedies it affords a rights claimant alleging a violation of the right. Within constitutions, rights (especially socio-economic ones) are usually articulated in aspirational terms, while more programmatic realisation is achieved through statutory law. Hence, the construction of a legal right usually involves an attempt at both constitutional recognition and the enactment of a statute.

The very fact that our Constitution includes a chapter called ‘Fundamental Rights’ creates a hierarchy between rights listed in that part (such as the freedom of speech and expression, and the right to life and personal liberty) and rights listed outside the chapter (such as the right to vote, the right not to be taxed except under authority of law and the right to property). Given that all law in the country is expected to be compliant with the Constitution, there is technically just one difference between a fundamental right and any other constitutional right: A right-holder (any person or a citizen, based on the language of the right) can challenge the violation of a fundamental right either directly before the Supreme Court or before the appropriate High Court. In the case of a constitutional right, there is no option of directly approaching the Supreme Court.

However, when the jurisprudence that has built around these two categories of rights is considered, a somewhat stark difference appears.