He’s gonna call on you.
But he’s badly built
And he walks on stilts,
Watch out he don’t fall on you.”

Bob Dylan.

[Am posting this as an add on to Nivi’s excellent piece on Judicial despotism. It was written at the height of Delhi’s sealing drive, and was first posted in Frontline.]

Lord Krishna stared at Maya Danav – the demon of illusions and the greatest architect on earth- and asked him to design an imperial court that would “excel all those on earth”. Then, according to the Mahabharata, Maya Danav planned out a 90,000 square foot plot of land and so was built Indraprastha – the first mythical city of Delhi and earliest illusion of the “world class city”. Centuries later, Delhi’s most recent attempt at planning has proved to be less poetic to the point of bluntness. In its most recent ruling on 28 April 2006, the Supreme Court observed that the sealing of commercial properties in residential areas must go on, and that “a policy of appeasement” had lead to “systemic failure” of planning in the city.

“Delhi, as per Masterplan 2001, is divided into 15 zones. We are now in 2006, and only 6 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 has lead to “ambiguous” and “contradictory” orders, with obviously detrimental results for Delhi’s citizenry in general and traders in particular. Trader organizations have claimed that the closures shall effect close to 700,000 people.

Earlier this year, Supreme Court rulings ordered the demolition of a 35 year old settlement in Nangla Machi, and a 20 year old settlement at Bhatti Mines, alongside the clearance of settlements in Kapaskhera, and Yamuna Pushta in Delhi and allowed the raising of the height of the Sardar Sarovar Dam in Madhya Pradesh.

In a recent press conference, Union Minister for Urban Development, Jaipal Reddy, sought to assuage fears that Delhi, and most Indian cities, were fast becoming isolated oases for the rich. On April 25 2006, Reddy announced that the Delhi Development Authority would construct 1,00,000 houses for slum dwellers over the next two years. However, an examination of the Authority’s record reveals another story. Figures released by the Sahja Manch, a NGO working the housing sector, suggest that from 1981 to 2001, the DDA was expected to construct 16 lakh dwelling units, with a total of 70 per cent intended for economically weaker sections of society and low income groups. However, the period saw the construction of only 5.5 lakh houses – less than half the projected figure- of which only 58 per cent were allotted to the urban poor.

An examination of case law in the same period also suggests reversal of hard fought successes in the realm of housing rights. While the Right to Housing does not find mention in the fundamental rights set out in the Indian Constitution, it is now recognized as a judicially derived fundamental right on the basis the landmark judgment by the Bombay High Court in the case of Olga Tellis versus the Bombay Municipal Corporation in 1985. In the case, filed on behalf of pavement dwellers in Bombay, the court held that the right to livelihood was an integral part of the Right to Life – as guaranteed by Article 21 of the Indian Constitution 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, in some cases expanded, in subsequent cases such as Chameli Singh v. State of U.P. in 1996, where the court held that the “ Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter.” In Ahmedabad Municipal Corporation, Appellant V. Nawab Khan Gulab Khan And Others, the Court went even further and held that “Article 19(1) (e) accords right to residence and settlement in any part of India as a fundamental right. 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.” Yet 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, Justice Chandrachud held that the pavement dwellers may be moved to alternate site, “but not further away in terms of distance.”

However, the very courts that have lent a broad and expansive reading to the Right of Life, have also delivered judgments that have marginalized the same people protected by the Olga Tellis case. Justice B.N. Kirpal’s observations in the Almitra H. Patel v. Union of India in 2000, are often cited as the most telling example of this qualitative shift in the Judiciary’s approach to the urban poor. In this case, related 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 free alternate site is like giving a reward to a pickpocket.” The Almitra Patel verdict proved so popular that in the 2002 case of Okhla Factory Owners Association V. Govt. of NCT of Delhi, the Delhi High Court, used Justice Kirpal’s observations to explain that, as encroachers, slum dwellers were ineligible for alternative accommodation and used this precedent to squash a Delhi State Government law that forbade slum demolition without rehabilitation. Thus, an examination of case law over the last twenty years shows a dramatic and evident shift in figure of the “slum dweller” in the eyes of the law and the city elite.

So, how has the “humbler being” of Justice Chandrachud transformed into the “pickpocket” of Justice Kirpal? The answer probably lies along the tightrope that the judiciary walks every time they rule on “social issues”. The slum question may be viewed in either moral (or social) terms, or in strictly juridical terms. Case history suggests that while the former took precedence in the 1980’s; of late, the Judiciary has tended to tilt towards the latter. Of late, the slum-dweller is no longer seen as a helpless victim of circumstance who deserves the compassion of the law, she is now seen as a cynical manipulator of the system – a usurper, and land-grabber, living off the tax-payer’s money, and so inviting the wrath of the law in all its majesty. But is this view true? A report released by the Federation for Indian Chamber of Commerce and Industry in 2000 suggests that in 1994, there were 4.8 lakh dwelling units, or about 22 lakh in a total land area of only 9.5 sq. kms. The total urban area of Delhi is 625 sq. kms. In effect, on the basis of the 1991 census of Delhi, almost 23 per cent of Delhi’s population was living on no more than 1.5 per cent of the total urban area of Delhi! An inequality that is likely to have increased even further in the last decade. Thus, statistically, the slum dweller is probably closer to Justice Chandrachud’s description; however, neither viewpoints provide 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, that exists on the boundaries of civil society and the formal legal institutions of the state. A contemporary example of such negotiation is provided by Chatterjee in the case of the resettlement of the residents of Rajarhat in north-east Calcutta’s rural-agricultural belt. According to Chatterjee, the designation of Rajarhat as a the site for a new township lead to sky-rocketing land prices, and the problem that the values of all lands in urban and semi-urban areas were 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” land prices. A Land Procurement Committee, consisting of representatives of both, local government and opposition political parties, that negotiated a price acceptable for 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 a de-politicisation of processes like urban planning. However, Kolkata’s experiences suggest that politicization 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 cityscapes that seem custom designed to criminalize 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