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| @KushalNandwani | April 18,2019

THE Delhi High Court, in an interesting judgement recently[1], ordered that the forced evictions of slum-dwellers without due process could not be allowed. The Court was hearing a matter concerning a slum cluster  (juggi jhopdi or JJ) that had come up in Shakur Basti in Delhi, on railway land. The petition was filed by Ajay Maken, a two time MP of the Congress party, in December 2015 to seek relief in relation to the demolition and forced eviction of around 5000 slum dwellers by the Railways in coordination with the Delhi Police. This eviction, it was contended, was being undertaken without following due process as no alternative arrangements had been made before the eviction. As a result, the dwellers were forced to live in open. The demolition and eviction drive had also, allegedly, caused the death of a six year old child.

Accepting these contentions, the High Court provided that unless procedural requirements were followed, there was ‘no imminent possibility of eviction of the JJ dwellers of the Shakur basti.’

 The High Court, in an earlier order in the same case, mentioned in the final judgement, had found the Railways short of following the procedure of carrying out a detailed survey before undertaking such an eviction drive with the help of the Delhi Police.

The final judgement of the court in the same case lays out comprehensive details of the Right to Housing of the slum-dwellers, their “Right to the City”, and the conditions for meaningful engagement. While the right to housing of slum-dwellers is not absolute, it is required on the part of the agencies, the Railways in this case, to conduct a survey to determine the eligibility of inhabitant for Rehabilitation under the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015, before any eviction drive is undertaken.  The court took note of the conditions that must be fulfilled before the eviction of the slum-dwellers, namely:

  • Before any eviction can be commenced, there must be a survey in order to determine whether the residents are eligible for rehabilitation in accordance with the existing law and policy.
  • In case the answer to the above is “yes”, the eviction cannot be commenced until provisions are made either for in situ rehabilitation, or for alternative accommodation.
  • Any eviction must be preceded by meaningful engagement with the residents on all issues, including the terms and conditions of rehabilitation.

 

From Encroachers to Citizens with Rights

 

The judgment is like a culmination of a long battle that began with the case of Olga Tellis, where the court first established that pavement dwellers could not be just evicted and termed as encroachers. What has followed is a struggle that has allowed pavement and basti dwellers to fight for establishing due process without which they cannot be evicted. This change has guaranteed them certain rights with regard to housing, livelihood, right to health, right to food and a lot more. ‘The right to housing is a bundle of rights not limited to a bare shelter over one’s head” as the judgement notes. More importantly, this struggle has enabled landless dwellers to be considered legal citizens with certain fundamental rights and an amount of dignity which they lacked earlier as illegal encroachers.

 

Right to the City: A limited enquiry

 

While the judgment of the court on the right to housing and livelihood can rightly be understood as fair and progressive in the current scenario of growing inequality, the court does limit its enquiry by not questioning its own assumptions.

In its build-up to the conclusion where the judgement regards due process before any eviction as mandatory, it also quotes several statistics that reflect on the gravity of the problem of urban poverty and homeless people. Several people living in Delhi are facing acute problems in their daily survival in the city. This also has the potential to destabilise the economy and the polity, as one of the reports by the International Growth Centre cited in the judgment mentions.

Taking note of the gravity of the situation, the court moves on to reflect on the “new urban agenda” adopted by the UN in 2016 that calls for sustainable forms of urban development in which all citizens have a right to the city, slum-dwellers included, by virtue of their legal citizen status that the judgement grants. As quoted in the judgement, this Right to the City is defined as follows:

“The Right to the city is… defined as the right of all inhabitants present and futures, to occupy, use and produce just, inclusive and sustainable cities, defined as a common good essential to the quality of life. The right to the city further implies responsibilities on governments and people to claim, defend, and promote this right.”

The city is thought of as a common good in which all have a right to contribute without any discrimination.

Thus, this “new urban agenda” and the commitment of social welfare highlighted by the Constitution of India, become the bedrock of the right to the city and by extension Right to Shelter provided to the jhuggi dwellers.  

 

Does the judgment  unknowingly perpetuate a private agenda

 

However, in charting out the commitments of sustainable development and social welfare, the court limits itself to the idealistic provisions charted out by the United Nations, without really looking into the question of its possibilities and the politics that ensues. Urban Development scholars like Maria Kaika and Loca Ruggiero in their paper ‘Land Financialisation as a “lived” process: The Transformation of Milan’s Bicocca by Pirelli’ talk about how in a capital and market driven world, land becomes an important financial commodity and various players play a role in determining the development policies. They talk of the alliances made between private and local state actors, promises made to workers to provide them with benefits, which are largely left unfulfilled, as ways of furthering private agenda.

Thus, development is driven by the reasons of economic returns and financial gain. Each region acquires its own distinct ways in which this partnership between state and non-state actors plays out in this politics of development[2]. To assume, thus, that all citizens have a right to the city without discrimination, or to limit itself to idealistic provisions without enquiring into the possibilities of application of these provisions says something about the limitations of the judgement itself. Right to the city and a reformative, sustainable development agenda for the cities are not natural allies, and enquiries into the politics that ensues in between is required.

Furthermore, to enquire whether conditions exist for the enjoyment of the fundamental or legal rights entitled by the constitution and the Courts is very much within the jurisdiction of the courts. Thus, any arguments of Courts not having any business to look into the workings of the politics of sustainable development must be reconsidered.

 

Are our courts neo-liberal?

 

Many lawyers and scholars including Indira Jaising[3], Prashant Bhushan[4], Nivedita Menon[5] have observed that the 1990’s and the following period were marked by the neoliberal logic taking over the judiciary. It is argued that the Supreme Court came out with several judgements that favoured big companies and led to evaporation of labour rights, environmental degradation, and more. Several judgements are cited to support the claim of neo-liberal orientations of the court. In the light of that debate, the question that the current judgement puts forward is – how can we claim the courts to be neo-liberal when we still have judgements that uphold and expand the fundamental rights of the most underprivileged classes?

Shedding aside any insinuations of bias on part of judges, or even lack of any coherent ideological commitments within Indian judiciary, we must slightly alter the question and ask: Why do we claim the courts to be neo-liberal? The answer to this question lies not in the fact that courts have come out with a  biased judgements, but the fact that courts, even in seemingly progressive judgements like these, have continued to rely on the logic of development or other alternative development strategies. Ideology works through getting assimilated in the common sense[6] and presenting itself as the only way to ‘be’[7]. The discourse of development, through sustainable development, is very much present within this judgment too. We have been made to believe that more comprehensive forms of development are the only way forward to solve issues of poverty and financial instability.

However, for any real alternative, we must abandon any such distinctions of development and sustainable development.

 Latin American scholars like Arturo Escobar have criticised development models for being inherently unequal, being hegemonic, wiping away all traditional ways of knowing and being.[8] Rather, they talk of a post-development narrative that is not about “alternative models of development but alternatives to development”. The discourse on development puts forward a singular hegemonic narrative around which to organise nations and creates needs and lifestyles that are not otherwise essential. The entire idea is to normalise a narrative in which some nations or societies will always play catch up, for a constant need to develop is what the model thrives on. Sustainable development models, too, thrive on the same idea, fundamentally.

Rather, post-development scholars emphasise upon indigenous cultures, autonomous and constantly adaptive modes of production that are inherently equal and sustainable as opposed to the inherently unequal models of development. They do not profess any global narratives that all societies must follows. Rather, the global south must reject these hegemonic projects and develop its own practices.

Thus, at the heart of post-development theory is to abandon the project of development that has led to all kinds of destruction and displacements and develop its own narratives.

Lastly, the limited intention here is to highlight the underground workings of ideology in the judgments by pointing out alternate discourses. By highlighting an alternate thought process, the neo-liberal leanings of the current judgement too stand exposed. While, it is not the sole responsibility of courts to further such a narrative, they do have a stake in enquiring into the inequalities that current economic structures further.

 

 

 

[1] Ajay Maken & ors v UOI & ors (WP(C) 11616/2015)

[2] ‘Deal or no deal?’ Governing urban infrastructure funding and financing in the UK City Deals’ by Peter o’ Brien and Andy Pike

[3] “An outsider, Inside” in ‘Making a Difference’ edited by Ritu Menon

[4] ‘Supreme Court and PIL: Changing Perspectives under Liberalisation’ in EPW

[5] ‘Environment and the Will to Rule: Supreme Court and Public Interest Litigations in the 1990s’, The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India edited by  Mayur Suresh and Siddharth Narrain

[6] Language and Power by Norman Fairclough

[7] Mapping Ideology edited by Slavoj Zizek

[8] ‘Encountering Development – The Making and Unmaking of the Third World’ by Arturo Escobar

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