Pushed to the margins

Examining the situation of the poor in the context of the Supreme Court's recent rulings on the Delhi demolitions. text and Photographs

DELHI'S most recent attempt at planning has proved to be far less poetic than its mythical origin as Indraprastha. In its ruling on April 28, the Supreme Court said that commercial property in residential areas must continue to be sealed and added that "a policy of appeasement" had led to a "systemic failure of planning in the city".

Delhi, as per Masterplan 2001, is divided into 15 zones. "We are now in 2006, and only six zonal development plans have been prepared," says Praveen Khandelwal, secretary-general of the Confederation of All India Traders. Khandelwal feels that the "lethargy" of government agencies led to "ambiguous" and "contradictory" orders to the detriment of Delhi's citizenry in general and traders in particular. Trade organisations claim that the commercial closures will affect close to 700,000 people. Earlier this year, the Supreme Court ordered the demolition of a 35-year-old settlement in Nangla Machi, a 20-year-old settlement at Bhatti Mines, alongside Kapaskhera and Yamuna Pushta.

At a recent media conference, Union Minister for Urban Development S. Jaipal Reddy sought to assuage fears that Delhi and most other Indian cities were fast becoming isolated oases of the rich. On April 25, Reddy announced that the Delhi Development Authority (DDA) would construct one lakh houses for slum-dwellers over the next two years. However, an examination of the DDA's record reveals another story. Figures released by the Sahja Manch, an NGO working in the housing sector, suggests that from 1981 to 2001 the DDA was expected to construct 16 lakh dwelling units, of which 70 per cent were intended for the economically weaker sections and low-income groups. But the period saw the construction of only 5.5 lakh houses, of which only 58 per cent were allotted to the urban poor.

An examination of case law in the same period also suggests a reversal of hard-fought successes in the realm of housing rights. While the right to housing does not find mention among the fundamental rights set out in the Constitution, the Supreme Court's judgment in Olga Tellis vs the Bombay Municipal Corporation (1985) established this as a judicially derived right. In the case, filed on behalf of pavement dwellers in Mumbai, the court held that the right to livelihood was an integral part of the right to life - as guaranteed by Article 21 - and concluded that "in terms of the constitutional phraseology, the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life".

This broadened definition was upheld and expanded in subsequent cases such as Chameli Singh vs State of Uttar Pradesh (1996), in which the court held that the "right to life guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter". In Ahmedabad Municipal Corporation, Appellant vs Nawab Khan Gulab Khan And Others, the court went even further and ruled: "Article 19(1) (e) accords right to residence and settlement in any part of India as a fundamental right. The right to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of the Universal Declaration of Human Rights declares that everyone has the right to a standard of living adequate for the health and well-being of himself and his family; it includes food, clothing, housing, medical care and necessary social services."

It is important to note that in most cases the courts have upheld the right to housing to ensure that pavement-dwellers removed from government land are rehabilitated elsewhere. In fact, in the Olga Tellis case Chief Justice Y.V. Chandrachud held that the pavement-dwellers may be moved to an alternative site.

However, the very courts that have lent a broad and expansive reading to the right to life have also delivered judgments that have marginalised the same people protected by the Olga Tellis case. Justice B.N. Kirpal's observations in Almitra H. Patel vs Union of India (2000) are often cited as constituting the most telling example of a qualitative shift in the judiciary's approach to the urban poor. In this case, relating to the issue of solid waste disposal, the court observed that the number of slums in the capital had multiplied in "geometric proportion" and held that "the promise of free land, at the taxpayers cost, in place of a jhuggi, is a proposal which attracts more land-grabbers". The court summed up by stating that "rewarding an encroacher on public land with a free alternate site is like giving a reward to a pickpocket".

The Almitra Patel verdict proved so popular that in the case of Okhla Factory Owners Association vs Goverment of National Capital Territory of Delhi, the Delhi High Court used Justice Kirpal's observations to explain that as encroachers, slum-dwellers were ineligible for alternative accommodation and thereby quashed a Delhi State government law that forbade slum demolition without rehabilitation.

An examination of case law over the past 20 years shows a dramatic change in how the "slumdweller" appeared in the eyes of the law and the city elite. How has the "humbler being" of Justice Chandrachud transformed into a "pickpocket"? The answer probably lies along the tight-rope that the judiciary walks every time it rules on "social issues". The slum question may be viewed in either moral or strictly juridical terms. Case history suggests that while the former took precedence in the 1980s, recently the judiciary has tended to tilt towards the latter.The slum-dweller is no longer seen as a helpless victim of circumstances who deserves the compassion of the law but a cynical manipulator of the system - a usurper and land-grabber, living off the taxpayer's money, and so inviting the wrath of the law.

But is this a true representation? A report released by the Federation for Indian Chambers of Commerce and Industry (FICCI) in 2000 suggests that in 1994, there were 4.8 lakh dwelling units, or about 22 lakh people in a total land area of only 9.5 square kilometres in Delhi. The total urban area of Delhi is 625 sq. km. In effect, on the basis of the 1991 Census, almost 23 per cent of Delhi's population was living on no more than 1.5 per cent of its total urban area. Such inequitable land distribution is likely to have increased in the last decade. Statistically it seems the slum dweller is probably closer to Justice Chandrachud's description.

Neither viewpoints provides us with creative solutions on how to deal with issues of livelihood, shelter and settlement on public land. In his most recent writings on popular politics, such as Politics of the Governed and Rights of the Governed, political theorist Partha Chatterjee postulates the idea of "political society" as a space of negotiation between citizen groups and government entities. This exists on the boundaries of civil society and the formal legal institutions of the state.

Chatterjee provides a contemporary example of such negotiations - the case of the resettlement of the residents of Rajarhat in north-east Kolkata's rural-agricultural belt. According to Chatterjee, the designation of Rajarhat as the site for a new township led to skyrocketing land prices. As such, the value of land in urban and semi-urban areas is routinely under-recorded in order to avoid taxes. However, acquisition by government and private entities would have proceeded along the legally recorded (artificially low) prices, had it not been for the decision to induce voluntary resettlement at "negotiated" prices. A land procurement committee, consisting of representatives of both the local government and Opposition political parties negotiated a price acceptable to all affected persons.

To quote Chatterjee: "The result, it is claimed, is a virtually trouble-free acquisition with almost no court cases. Owners were paid the compensation within three months (since there was no official procedure of price fixation) - this was a record by any standards. The cost of acquisition was certainly higher than would have been the case if the normal legal procedure were followed... . " Yet delays arising from legal disputes were avoided.

Chatterjee's writings and Kolkata's experiments with urbanisation provide a wholly different perspective through which urban planning may be understood. The most consistent demand of elite institutions, and in fact many urban activists, has been the de-politicisation of processes such as urban planning. However, Kolkata's experiences suggest that politicisation of planning is the only way to ensure that the rights of the less powerful are protected.

Interestingly, political appointees are usually vilified by the elite media for performing exactly those tasks that their electorate has asked them to do. Without holding a brief for political corruption or interference (to great elite concerns), the fact that politicians are eventually answerable to their electorate cannot be ignored. In city scapes that seem custom-designed to criminalise poverty, politicisation and political economy provide the space for democratic deliberation - something that has been conspicuous by its absence in the drafting of Delhi's Masterplan 2021.