ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

A+| A| A-

Analysis of New Legal Discourse behind Delhi's Slum Demolitions

A discourse analysis of court documents in slum-related cases from the past 25 years leads to the conclusion that the basic statement that "slums are illegal" is a very recent juridical discourse and the rise of court orders to demolish slums is due to reinterpretation of nuisance law. The "new nuisance discourse" that arose in the early 2000s re-problematised slums as nuisances and became the primary mechanism by which slum demolitions take place at present.

SPECIAL ARTICLEEconomic & Political Weekly EPW may 17, 200857I thank Preeti Mani and Lalit Batra for useful comments on this paper.D Asher Ghertner (ghertner@berkeley.edu) is a PhD candidate at the University of California, Berkeley researching urban geography and the political economy of slum demolitions in Delhi.Analysis of New Legal Discourse behind Delhi’s Slum DemolitionsD Asher GhertnerSince 2000, the pace of slum demolition in Delhi has increased starkly. The combined number of slum, or ‘jhuggi jhompri’ (JJ), clusters demolished by the Municipal Corporation of Delhi (MCD) and Delhi Development Authority (DDA) for the five years leading up to 2,000 rose more than tenfold [Ghertner 2005]. This increase is the directoutcome of the judici-ary’s expanded role in demanding slum clearance. Whereas the decision to raze a slum was previously the almost exclusive domain of Delhi’s various land-owning agencies, in particular theDDA, these wings of government now have little say in deter-mining the legal and political status of such settlements. Instead, the primary avenue by which slums are demolished today begins when a residents’ welfare association (RWA) files a writ petition praying for the removal of a neighbouring slum, proceeds through the court’s granting of the RWA’s prayer, and ends when the landowning agency abides by the court’s direction. 1 IntroductionRecent analyses of the courts’ slum-related decisions have attrib-uted the current round of slum demolition to a new anti-poor judicial orientation, the foundation of which they ascribe to a reinterpretation of the right to life guaranteed under Article 21 of the Constitution of India [Ramanathan 2006; Bhushan 2006]. Whereas the courts previously paid special heed to slum-dwellers as an economically deprived and downtrodden popula-tion, these authors argue that the courts have elevated the lives and environment of tax-paying residents of formal residential colonies over those of slum-dwellers. While not contesting the arguments of these previous studies, this paper seeks to identify the legal and technical mechanisms by which court-issued slum demolitions are actualised. That is, more than an anti-poor bias within the judiciary, this paper will discern the evidentiary requirements the courts deem necessary for demonstrating a slum’s illegality and set out to question the technical basis on which slum illegality is defined. It does so by engaging in a discourse analysis of both (i) the orders and judgments of the Delhi High Court and Supreme Court of India related to slum demolition, as well as the (ii) original civil writ petitions filed in five different cases that directly led to the demolition of a slum in Delhi. Discourse analysis is a component of the French historian Michel Foucault’s genealogical methodology in which the goal of inquiry is to determine how taken-for-granted “truths” are in fact the products of intense struggles over power [Foucault 1976]. Discourses are verbal or textual enunciations that are assumed to A discourse analysis of court documents in slum-related cases from the past 25 years leads to the conclusion that the basic statement that “slums are illegal” is a very recent juridical discourse and the rise of court orders to demolish slums is due to reinterpretation of nuisance law. The “new nuisance discourse” that arose in the early 2000s re-problematised slums as nuisances and became the primary mechanism by which slum demolitions take place at present.
SPECIAL ARTICLEmay 17, 2008 EPW Economic & Political Weekly58EPWRF
SPECIAL ARTICLEEconomic & Political Weekly EPW may 17, 200859be truthful within a given time without undergoing the typical procedures of verification. Discourses circulate widely, become commonsensical, and are put into practice uncritically, even though they are the outcome of deep, often historical, contesta-tion. Foucault’s challenge is to identify how discourses acquire the status of truth, thus giving us insight into how an existing “regime of truth” is formed and the fragility of the grounds on which it rests – the goal being to disturb that truth regime to allow alternative possibilities to emerge. Thus, when analysing text, Foucault recommends that in lieu of “trying to discover its guiding principles”, as previous legal studies of Delhi slum demolitions have effectively done, we should “reconstruct the function of the text… according to its objectives, the strategies that govern it, and the programme of political action that it proposes” [Foucault 2006]. This paper highlights key words and phrases that arise within the proceedings of slum-related cases with the goal of showing how the basic statement that “slums are illegal” is a very recent juridical discourse, despite its widespread circulation in Delhi today. It further argues that proving this statement in the courts today rests on a different and less rigorous evidentiary procedure than other types of truth claims: to prove a slum’s illegality, one must demonstrate that it appears to be a nuisance. The paper findsthat the recent criminalisation of informal settlements in general and the rise of court orders to demolish slums in parti-cular is occurring not simply because the judiciary is all of a sudden“anti-poor”, but rather because of a reinterpretation of nuisance law. Nuisance has thus become the key legal trope driving slum demolitions and has been incredibly influential in resculpting both Delhi’s residential geography and how the city’s future is imagined. The paper proceeds in Section 2 by describing the basis of nuisance law in India, with special emphasis on how it was understood and implemented through the 1980s and much of the 1990s. Section3 analyses key rulings in the courts that led to a re-problematisation of “the slum” in terms of nuisance in the early 2000s. Section 4 examines a set of petitions filed in the Delhi High Court praying for the removal of slums and situates them in the context of court cases from the past 10 years to show how the interpretation of nuisance has been used to mark informal settlements as polluting and thus illegal. And, Section5 concludes by drawing out the implications of the discourseof nuisance for the future of urban development in Delhi.2 The Foundations of Nuisance LawA nuisance is legally defined as “any act, omission, injury, damage, annoyance or offence to the sense of sight, smell, hearing or which is or may be dangerous to life or injurious to health or property” [Jain 2005]. In common law, nuisances are of two types: public and private, where the former is an “unreason-able interference with a right common to the general public” and the latter is a “substantial and unreasonable interference with the use or enjoyment of land” (ibid). The primary statutes in the Indian legal system that provide channels to redress nuisance are section 133 of the Code of Criminal Procedure, 1973 (hereafter CrPC) and section 91 of the Code of Civil Procedure, 1908, both of which derive their definitions of nuisance from British common law. Section 133 CrPC was written more recently with the intention of providing an independent, quick and summary remedy topublic nuisance by empowering a magistrate to order its removal [Sengar 2007]. The nuisances referred to in section 133 include: obstructions to a public place or way, trades or activities hazardous to the surrounding community, flammable substances, objects that could fall and cause injury, unfenced excavations or wells, or unconfined and dangerous animals.1 Nuisances are thus limited to two categories: (i) objects or possessions, and (ii) actions – categories that we will re-examine in Section 3.Case law during the 1980s and 1990s significantly elaborated the judicial and administrative considerations that must be brought to bear in addressing any problem of nuisance. This section proceeds to highlight the framework for dealing with public nuisances connected with slums as it emerged from case law during these decades.The landmark case pertaining to slum-related nuisance was decided in 1980 in Ratlam Municipal Council vs Vardichan. In this case, the Ratlam Municipal Council was directed by a magistrate, empowered under section 133 CrPC, to construct and improve drains in a municipal ward to eradicate nuisance caused by stag-nant, putrid water. The municipal council subsequently filed an appeal in the sessions court, which overturned the magistrate’s ruling. The initial order was later upheld by the high court and finally brought before the Supreme Court, where justice Krishna Iyer, in defending the magistrate’s initial order, affirmed the statutory nature of section 133 CrPC and declared it to be the primary remedial mechanism for dealing with public nuisance: “Wherever there is a public nuisance, the presence of section 133 CrPC must be felt and any contrary opinion is contrary to law”.2 The judge further stated that section 133 CrPC should be the main channel by which courts ensure that municipal bodies carry out their duty to provide clean and safe environments for city residents.In this judgment, the court also clarified that the municipal authorities and notslum-dwellers are the party responsible for nuisances arising from slums with inadequate municipal services. The judge explained: “[T]he grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the slyforatime, and openly thereafter, because under Nature’s pressure, bashfulness becomes a luxury and dignity a difficult art…. [P]roviding drainage systems… cannot be evaded if the municipality is to justify its existence.” The removal of public nuisance in slum-related cases, then, is through the application of positive technologies (e g, building drainage systems). That is, instead of removing, disciplining or punishing those denied adequate sanitation services, government here should operate through positive means to manage and mitigate waste and effluent and thus improve the population subjected to the same. Throughout the 1980s and early 1990s, the Ratlam decision set a precedent for upholding the statutory duties of municipal authorities to ensure public health, particularly that of slum residents.3
SPECIAL ARTICLEmay 17, 2008 EPW Economic & Political Weekly60Blaming the AuthoritiesIn this context, it is useful to examine the character of petitions filed during this same period by private RWAs seeking judicial intervention to address slum-related nuisances, the type of petition that has become a major instrument of slum demolition today. As an example, take the case of K K Manchanda vs the Union of India,4 a matter that appeared before the Delhi High Court regularly until 2002 and that became the lead petition in a summary ruling of 63 related slum matters that we will discuss in detail in the following section. The petitioner, the Ashok Vihar RWA, submitted that residents were aggrieved by the squalid conditions of a vacant piece of land in front of their colony that, according to the approved zonal plan, was supposed to be a “green belt-cum-community park”. The petition states that the primary source of grievance is “public nuisance” and “health hazard” created by nearby slum-dwellers’ use of this land as an “open public lavatory”: “Adjacent to this green belt… there are large number of jhuggies and jhompries [huts] situated in the said vicinity…. [and that] people residing in these jhuggies…, all of them ladies, gents, their offsprings make use of this public ground… for easing themselves throughout the day (sic).” The petition goes on to say that this has made the lives of the RWA residents “miserable” and has “transgressed their right to very living” because “thousand of people easing themselves pose such uncultured scene, besides no young girls can dare to come to their own balconies throughout the day [because] obnoxious smells pollute the atmosphere [, thus] the entire environment is unconducive to public health and morality (sic)”. The petition thus clearly states that the source of public nuisance faced by the petitioner is slum-dwellers’ misuse of public land. Yet, because the petition was written in a discursive context structured by the Ratlam decision and the strict definition of public nuisance provided above, the petition does not target the slum itself, as similar petitions filed a decade later would do. Rather it states that the petitioner is aggrieved “because the inaction on the part of the respondents [the Delhi Administration and DDA] has posed various problems like public indecency, public immorality, health hazard, etc, which the respondents are statutorily liable to control...”. Following the norm set forth in the Ratlam decision, the petition thus states that the slum residents are forced to ease themselves on public land because “there is no provision of latrines (public toilets) for the people residing in these jhuggies”. Again, the blame for the public nuisance falls upon the authorities, as is clear from the petitioner’s prayer that the court order the authorities to build a community toilet near the slum, develop the vacant land into a community park, and control access to the park by building a boundary wall. In August 1992, the court disposed the petition while ordering the respondents to prevent the slum residents from defecating in the park.The problem defined and targeted in this case therefore had nothing to do with the presence of the slum or its legal basis; rather, it merely concerned the nuisance-causing activities of this community. Furthermore, nuisance law was used here as a mechanism by the courts to provide municipal services to slum- dwellers. In the following section, we will examine how nuisance has been redefined in such a way that this same category of the population gets re-read as themselves a nuisance. While cases through the mid-late 1990s continued to rely on the Ratlam decision in dealing with slum-derived public nuisances, a new problematisation of the slum begins to emerge within juridical discourse at the same time, a trend that portends how slums would be seen by the beginning of the next decade. This trend begins to surface in B L Wadehra vs the Union of India,5 a case addressing the problem of inadequate waste disposal in Delhi. Whereas the original petition concerned the failure of the MCD to dispose of municipal waste across the city, and whereas the final orders issued by the Supreme Court direct theMCD to fulfil its statutory duties to “collect and dispose of the garbage/waste generated from various sources in the city” by increasing the efficiency of waste collection, the judgment makes occasional mention of a growing “problem” of the slum. The MCD in particular presents slums as a key problem obstructing it from carrying out its duties, stating in its affidavit that because of “problems of jhuggi jhompri (jj) clusters [and] floating popula-tion and for various other reasons, it is not possible to give the time schedule regarding the cleaning of Delhi as directed by this court”. While this type of statement does not yet target slums for demolition, it forms the basis on which future decisions equating slums with nuisance will rely. 3 Equating Slums with NuisanceIn 2000, highlighting the need for Delhi to be the “showpiece” of the country, the Supreme Court’s now famous judgment in Almrita Patel vs the Union of India6 radically altered the discur-sive terrain of nuisance law. Without a single mention of the Ratlam decision, this judgment begins where the Wadehra case had left off by hauling up the municipal authorities for failing to improve the waste disposal situation in Delhi. However, the court here quickly introduces a new problem in addressing this citywide nuisance: “when a large number of inhabitants live… in slums with no care for hygiene, the problem becomes more complex”. Based on the inherent deficiencies of the slum population, this sentence declares, slums are essentially spaces of filth and nuisance, lacking basic concern for health and environment. These words set the tone for the following paragraph, whereinthe distinction between slums and slum-derived waste is blurred: Instead of “slum clearance” there is “slum creation” in Delhi. This in turn gives rise to domestic waste being strewn on open land in and around the slums. This can best be controlled at least, in the first instance, bypreventing the growth of slums. The authorities must realise that there is a limit to which the population of a city can be increased, without enlarging its size. In other words the density of population per square kilometre cannot be allowed to increase beyond the sustainable limit. Creation of slums resulting in increase in density has to be prevented… It is the garbage and solid waste generated by these slums which require to be dealt with most expeditiously (emphasis added). And so emerges the new definition of nuisance: nuisance arises from the problem of population. Nuisances in the city, it is stated, originate from overpopulation and slum growth; not from the government’s failure to provide municipal services,
SPECIAL ARTICLEEconomic & Political Weekly EPW may 17, 200861nor its failure to provide low-income housing as guaranteed in the Delhi master plan. If we examine the two italicised word clusters shown above, we find that this paragraph not only redefines nuisance, but also proposes a new solution: “waste generated bythese slums” can be dealt with “by preventing the growth of slums”.The formal definition of nuisance described in Section 2 included only particular categories of objects possessed, or actions performed, by an individual or group, whereas the current interpretation includes individuals or groups themselves as possible nuisance categories. This vastly expands the range of procedures that can be administered: no longer simply regulat-ing the nuisance-causing behaviour of individuals, we will find that nuisance law can soon be used to remove individuals themselves. Order number six in the same judgment sets the stage for this very strategy in future cases: “We direct [the respondent authorities] to take appropriate steps for preventing any fresh encroachment or unauthorised occupation of public land for the purpose of dwelling resulting in creation of a slum. Further, appropriate steps be taken to improve the sanitation in the existing slumstill they are removed and the land reclaimed” (emphasis added). Here, it is clear that the court sees the need to remove all slums to resolve the problem of municipal waste in the city. Thus, within the space of a few paragraphs, the strategic implication of nuisance law shifts from a positive technology of building municipal infrastructure to a negative and disciplinary technology of elimination and displacement. The MCD’s lackadai-sical approach to installing waste bins, the main problem defined in the Almrita Patel case, leads to the need to eliminate the residential spaces of the working poor, and the “polluting poor” discourse is (re-)born.7Shift in Discursive TerrainOverall, the Almrita Patel judgment is significant not only for marking the first time the Supreme Court targeted slums as a city-wide public nuisance, but also because it shifted the discur-sive terrain away from an analysis of cause and effect to an abstract language of essences, overcrowding, and moral decrepi-tude. It is in this vein that the now infamous line from this judgment that “rewarding an encroacher on public land with a free alternative site is like giving a reward to a pickpocket” is so powerful, for it instantly essentialises one quarter of the city’s population living in slums as criminal, illegal, filthy, and nuisance causing. This judgment denies the fact that this same population lives on a mere 2 per cent of urban residential land, despite their historical entitlement enshrined in planning law to 25 per cent of that land.8The statement “slums are illegal” and reference to slums as “illegal encroachments” gained widespread circulation only after the Supreme Court’s equation of slums with nuisance. If we look back at petitions and court matters filed before the main orders from Almrita Patel were issued, for example the Manchanda petition we examined in the previous section, we see that there is little to no mention of slums as “illegal encroachments”. Where encroachment or misuse is accused, it is buoyed by concrete evidence related to a land use violation. As we will see in the following section, such is not the case with contemporary petitions filed against slums. The Almrita Patel judgment inaugurated a key discursive shift regarding slums and nuisance and marks a critical break from previous case law that emphasised the formal definition of nuisance laid down in section 133 CrPC. However, it was a case proceeding before the chief justice of the Delhi High Court in the early 2000s that gave technical traction to this new discourse by designating a programme of slum removal capable of reinscribing Delhi’s landscape according to the moral grid of filth and nuisance. In 1999, the petitioner in the Manchanda case filed a contempt motion against the municipal authorities for failing to improve the environment in its neighbourhood. Prior to the continuation of this matter, however, numerous writ petitions “mostly filed by various resident associations of colonies alleging that after encroaching the public land, these JJ clusters have been constructed in an illegal manner and they are causing nuisance of varied kind for the residents of those areas” appeared before the court.9 Therefore, the court lumped these 63 related petitions together under the lead petitions of Pitampura Sudhar Samiti10 and K K Manchanda11 while embarking on the stated goal of taking up “the larger issue of removal of unauthorisedJJ clusters from public land which were in the vicinity of various residential colonies”. Here, we already find a stark contrast with the court’s approach to the Manchanda case in the early 1990s. The intro-ductory comments to the judgment (hereafter called the Pitampura judgment) issued in September 2002 clearly enunciate the purpose behind bringing these 63 cases together: to rid Delhi of the persistent nuisance of JJ clusters. An interim order passed in January 2002 justified this goal by invoking the problem of overpopulation in controlling slum-related nuisance: “the agencies… have not taken any effective steps to check the growth of these jhuggies which are still mushrooming on public land”.However, the task of removing the more than a quarter of Delhi’s population living in slums required a far more complex assemblage of justificatory and legal argumentation than the simple description of their “uncontrolled growth”. This is so because Delhi’s more than 1,000JJ clusters did not surrepti-tiously crop up (like mushrooms) in Delhi’s shady, vacant corners. Rather, as stated above, they have a complex legal and political history that includes formal entitlement to 25 per cent of residen-tial land, only a fraction of which they were provided. Further, the Delhi government’s various resettlement policies protect slum residents from demolition without compensation. In fact, just months before the drafting of the final judgment in this case, the Planning Commission published a report explaining Delhi’s slum problem as the direct outcome of the DDA’s failure to imple-ment the mandatory 25 per cent housing provision for the economically weaker sections (EWS). How then was the court able to flout the poor’s legal and regulatory protections in favour of the more recent and seemingly offhand remarks of the Almrita Patel judgment?The Pitampura judgment begins by discursively dividing “the problem of the slum” into two individual dimensions: “One is the
SPECIAL ARTICLEmay 17, 2008 EPW Economic & Political Weekly62removal of JJ clusters and the other is their rehabilitation”. Because the second aspect was pending before a different bench of the high court12 during the proceedings of this case, the court here determined to focus on the removal of JJ clusters alone. Uncoupling Delhi residents’ entitlement to land and right to live in the city from their present place of residence was an unprece-dented twist in logic. In hindsight, however, this uncoupling appears the only way that the courts could simultaneously sustain the position that slums are spaces of filth and nuisance and that slum-dwellers are entitled to land and livelihood. Once the question of the entitlements of the urban poor to public land (i e, the question of “rehabilitation”) was bracketed, the court could easily proceed to summarise the entire history of slum settlement in a single sentence: “There is large-scale encroachment of public land by the persons who come from other states”. That is, slum-dwellers are alien, come from “other” places, and deprive the true residents of Delhi of what is right-fully theirs. Despite 45 years of the DDA’s existence and a longer history of informal settlements in Delhi, the court disregards the messy conditions that led to the development of slums13 and declares: “There is no denying the fact that no person has right to encroach public land… [I]t is the statutory duty cast upon the civic authorities… to remove such encroachments.” From this text, we see that legality is primarily gauged by the character of a settlement – is it on public or private land? Is it a formal or informal colony? The question of a settlement’s legal status now ignores (i) the economic and political context that led to the use of public land for informal housing, (ii) the manner in which residents of these spaces have been de facto formalised by receiving various forms of residence proof from the state (e g, ration and identity cards, registration tokens, etc), and (iii) the patent failure by the state to fulfil the statutory housing provi-sions of the master plan. Separating the question of entitlement from one’s present residential status, then, does not treat these two issues as logically distinct, as the tone of the judgment would suggest. Rather, this discursive separation makes accessing one’s housing entitlement incumbent on his current settlement status.The judgment next briefly acknowledges the second aspect of the slum problem – slum-dweller’s entitlement to public land – but denies its relevance by referring to the broader logic of nuisance: “No doubt, shelter for every citizen is an imperative of any good government, but there are cleaner ways to achieve that goal than converting public property into slum lords’ illegal estates” (emphasis added). “Cleaner” is of course, the key word in this sentence, here used as if it were a referent to some legal code. However, it is not clear to which statute this word may be refer-ring. One might think that the legal procedure for addressing cleanliness would derive from nuisance law, but the entire judgment makes no reference to section 133 CrPC, the key statute dealing with public nuisance. Rather, this referent – “clean” – derives its affect from the dominant discourse of nuisance we have been describing. That is, “cleanliness” becomes a symbolic code of settled meaning within judicial discourse, agreed upon without explication of its origins or legal foundation. It is of course preposterous to say that any settlement is “illegal” because it is not “clean” enough. Yet, this is precisely what the judgment says, for there is no other justification provided in the judgment for clearing slums; there is no mention – implicit or explicit – of any of the statutes governing displacement: not the Public Premises Act, 1971, nor the Land Acquisition Act, 1894. The statu-tory laws for dealing with the cleanliness of urban space are distinct from those for displacing a population. However, here, these two procedures are melded. If it is not yet clear that the new discourse of nuisance is the primary mechanism of slum demolition in the Pitampura case, consider the judgment’s final paragraph before the bench’s orders are recorded:The welfare of the residents of these [RWAs’] colonies is also in the realm of public interest which cannot be overlooked. After all, these residential colonies were developed first.The slums have been created afterwards which is the cause of nuisance and brooding ground of so many ills. The welfare, health, maintenance of law and order, safety and sanitation of these residents cannot be sacrificed and their right under Article 21 is violated in the name of social justice to the slum- dwellers. Even if the government and civic authorities move at snails pace and take time at their own leisure for the rehabilitation of these clusters, this is no excuse for continuing them at the given places (sic) (emphasis added).This paragraph provides the logic upon which dozens of JJ clusters will be demolished in the subsequent five years. The “cause of nuisance”, it is stated, is that “slums have been created”. This completes the discursive reworking of nuisance and estab-lishes a new legal precedent for informal settlements.Secondary Category of CitizensLet us now examine three concrete components of the Pitampura judgment’s discursive work. First, as was initiated in the Almrita Patel judgment, this paragraph divides “the public” into two categories: “normal” residents of formal colonies and slum-dwellers, the former owning private property and the latter occupying public land. Based on earlier text in the judgment, the court makes it clear that these two categories of settlement and the regulatory arrangements that support them are at odds. Therefore, the judgment states that because the former category own their property, came “first”, and suffer from the nuisance of the latter’s presence, their right to life under Article 21 of the constitution should trump the latter’s. This marks a change in the interpretation of rights, away from a framework envisioning the even distribution of rights across a population and in favour of a zero-sum conception of rights in which the enhancement of one’s well being necessarily detracts from another’s. It is in this vein that the judgment defines slum-dwellers as a secondary category of citizens whose “social justice” becomes actionable only after the fulfilment of the rights of residents of formal colonies.This decision reversed the prevalent interpretation of Article 21 regarding slum-dwellers that was established almost 20 years earlier in Olga Tellis vs Bombay Municipal Corporation.14 Whereas the Olga Tellis judgment emphasised the (alienable) right of the working poor to occupy public land to fulfil their livelihood requirements, the interpretation advanced in this judgment elevates the quality of life and enjoyment of land for propertied citizens over the livelihood of slum-dwellers.15 This is the transformation of Article 21 lamented by most critical legal
SPECIAL ARTICLEEconomic & Political Weekly EPW may 17, 200863studies of slum demolitions.16 However, this judgment clearly shows that it is only through the new mechanisms of nuisance law that this reversal is enacted. That is, the reinterpretation of Article 21 is a legal effect or outcome of the new nuisance discourse, not its cause. The new construal of Article 21 becomes an implicit and necessary effect of this discourse because, once it is established, this discourse inheres a set of assumptions about (i) what defines the proper citizens of a city – residents of formal colonies, (ii) who constitutes the “public” in whose interest “public interest” is defined – private property owners, and (iii) the elements of a “showpiece” city – an urban environment that is clean, nuisance-free, and thus slum-free. Nuisance discourse is so powerful, then, precisely because in performing the simple semiotic task of transforming what everyone knows –“slums are dirty” – into the new truth statement that “slums are a nuisance”, it simultaneously carries out much deeper ideological work. By rendering the statements “slums are illegal” and “slums are nuisances” acceptable, it reorients the terrain of citizenship, social justice and access to the city – categories that would typically fall in the domain of Article 21. Once these categories have been reengineered, the reinterpretation of Article 21 becomes but a pre-determined formality or logical extension of the new nuisance discourse.The second effect of the new nuisance discourse, which derives from the first, is a blurring of the distinction between public and private nuisance. If we return to the above quoted paragraph from the Pitampura judgment, it becomes clear that the court (and petitioners) is concerned with removing impediments to the security and welfare of the private colonies. This concern perfectly overlaps with the definition of private nuisance provided at the beginning of Section 2 – a “substantial and unreasonable interference with the use or enjoyment of land”. Yet, each of the cases discussed in this paper was filed as publicinterest litigation (PIL), a requirement of which is that the matter affects the broader public, not only a private party. Whereas the cases in question are ostensibly treated as matters of public nuisance, many of the actual grievances fall under the strict definition of private nuisance; it is thus apparent that the distinction between public and private is breaking down in the course of these hearings. To better grasp the import of the blurring of private and public nuisances, let us return to the distinction between “normal” society and slum-dwellers, which we found above to rest on the variable of property ownership. This was even more categorically stated in the Okhla judgment, which was the case proceeding alongside the Pitampura case concerning the issue of slum rehabilitation.17 In quashing the Delhi government’s slum resettle-ment policy, the final judgment in this case makes a clear distin-ction between “those who have scant respect for law and unauthorisedly squat on public land” and “citizens who have paid for the land”.18 Once landownership is established as the basis of citizenship as such, the preservation and prosperity of private property becomes an elevated concern. That is to say, when “the public” is defined by its ownership of property, the minimisation of private nuisance becomes a matter of public priority. Therefore, once “the public” is defined as property bearing and the protection of private property becomes a key concern of nuisance law, the reasonable, proper, and normal conduct of members of society concomitantly changes. This has stark impli-cations for the prosecution of nuisance and the overall manner in which land use is legally treated because, as Diwan and Rosencranz say in their comprehensive review of environmental case law, “The test which has always been found to be useful in distinguishing… [whether a nuisance exists or not] is the test of ascertaining the reaction of a reasonable person according to the ordinary usage of mankind living in a particular society in res-pect of the thing complained of” [Divan and Rosencranz 2001]. That is, nuisance is defined as conduct that the court determines to be outside the range of what a “reasonable person” would do. Once “a reasonable person” and “ordinary usage of mankind” are defined in terms of residents of formal residential colonies, the conduct of slum-dwellers can easily be labelled deviant and un-reasonable, be it even their mere existence. Whereas the Ratlam decision discussed in Section 2 sympathised with the compulsion slum-dwellers face to defecate in the open, this same act in the current legal environment comes to represent the behaviour of a population with “no care for hygiene”.19 This construal of legality flows from the view that the protection of private property is a component of public nuisance prosecution. Coming to the third effect of the new nuisance discourse, we find that once slum-dwellers’ lives are defined as outside thenormal range of citizen conduct, their access to representation and formal appeal is also brought into question. For, if theyareoutsideof normal citizenship, then the procedures for administering their conduct will also fall outside the normal domain of civil society.20 It is in this capacity that the final order of the Pitampura judgment states: “We may also note at this stage that some petitions were filed by various occupiers [slum residents] against whom orders for removal were passed...Since they are encroachments of public land… they have no legal right to maintain such a petition.” This statement militates against the position established by the Supreme Court in 1996: “When an encroacher approaches the court, the court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief”.21 Here, the possibility that an “encroacher” has a “right” to occupy public land is maintained. That is, an encroacher of public land is not presumed ex anteto be illegal. However, the definition of citizenship does not extend as far in the present context as it did in 1996, for the new discourse of nuisance has adjusted the procedures of natural justice. Today, as we will see in the next section, slum residents have become objects to be managed and disposed of, not citizens with interests and rights.4 Nuisance Discourse as MechanismThe previous section tracked the emergence of what we have been calling the “new nuisance discourse” and how it has recali-brated the factors used to determine a settlement’s legality. In this Section 1 will show how petitioner’s invocation of slum illega-lity along the parameters of nuisance has become an effective mechanism of removing slums. Specifically, by submitting petitions against slums as nuisances, petitioners are able to bypass the typical procedures of eviction. Here, I analyse the factors that drive this nuisance-based demolition mechanism by
SPECIAL ARTICLEmay 17, 2008 EPW Economic & Political Weekly64examining five original civil writ petitions filed in the Delhi High Court,22 each of which uses the new nuisance discourse, was filed by anRWA, and led to a slum demolition in the past three years. To understand how the new nuisance discourse is activated, I begin by briefly identifying discursive devices – turns of phrase producing a specific effect – common across the petitions. These reveal the patterns by which “nuisance” gets identified empirically and is summoned as a key term that trans-forms the identification of “slums as dirty” into the legal claim that “slums are nuisances”. The first discursive device used by all five petitions is reference to slums as a problem of overpopulation: “the area has virtually turned into a slum and the illegal and unauthorised encroach-ments has not only double, tripled over the years but has attained mammoth proportions and is threatening to burst at its seams (sic)”.23 The words “bursting”, “infesting”, “infectious” or “mush-rooming” are invariably used to evoke Malthusian fears that the poor’s mere presence will endanger the welfare of society at large: “The slum-dwellers are living in highly infectious and con-tagious conditions thus exposing themselves as well as the resi-dents of the society to epidemics”.24 The language in three of the petitions goes so far as to dehumanise slums by using the word “slum” not as a noun, but an adjective. Slums are then not places in this discourse; “slum” is a condition or a disease that infects certain spaces and must be eliminated, lest it spread to purer places. One concrete discursive device that plays upon this fear of “society” becoming slumified is the emphasis in four of the peti-tions on the special problem of slum-dwellers’ open defecation; two of the petitions go so far as to include photographs of resi-dents “caught in the act”: “These people defecate in the open cre-ating ghastly scenes and spreading foul smell and infection”.25 Overall, the overpopulation device is used to show the un-civic conduct of slum-dwellers and the importance of removing them to maintain the capital of India’s “showpiece” image.The second discursive device shared by all five petitions is the description of the dual categories of citizenship explored in Section 3. One, rightful, tax-paying citizens who live in formal colonies and the other, unlawful residents of slums. Four of the petitions bolster this viewpoint by explicitly relying on the inter-pretation of Article 21 that prioritises private property owners over all others (see Section 3). Further alluding to the second-class status of slum-dwellers, four of the petitions describe for-mally non-evictable actions like slum-dwellers’ un-metered use of electricity or hosting of “mass celebrations” that deprive RWA residents of resources and “tranquillity” as a justification for slum removal. Three of the five petitions also argue that slum-dwellers are alien by citing the presence of “anti-social” or “criminal” elements and people of “Bangladeshi origin” in slums. These common discursive devices reveal the channels by which slums are equated with nuisance in many contemporary petitions. However, to see how “nuisance”, once established, gets calibrated to a legal framework that requires slum demolition, let us look at the basis on which illegality is adduced in the petitions. Each of the five petitions makes reference to “illegal slums/JJ clusters” or describes “illegal/unauthorised encroachers” more often than it provides any specific details or discussion of what makes the slum in question illegal. None of the petitions state an explicit statutory basis for eviction. Three of the petitions only vaguely mention the MCD Act, Delhi Development Act or Delhi master plan, the invocation of which, in and of itself, does not justify demolition. So, although “illegal” is used as if it was a precise term, it does not actually carry any statutory precision. Therefore, to determine what these petitions infer when they describe slum illegality, I conducted a line-by-line analysis by marking lines in the petitions’ text based on the justification they provide for requesting demolition. Because the primary statutory basis on which slums can be, and historically have been, demolished is their violation of land use codes, I tracked lines in the petitions that make explicit mention of land use as a basis for the petitioner’s demolition request. The second category I tracked consists of lines referring to the slum as a nuisance. Before presenting the results from this analysis, let me clarify that the argument here is not that nuisance is the only basis for slum demolitions cited in the courts today.26 The land use category of the land on which slums are settled continues to play a role in slum demolition cases. However, petitions targeting slums for land use violations were filed regularly before the current round of (accelerated) slum demolitions. What is new and dominant about current juridical discourse about slums is the import accorded to nuisance. Showing Slums as NuisancesIn the five petitions analysed, lines referring to land use as the basis for demolition appeared 139 times, whereas lines referring to slums-as-nuisance appeared 346 times, or two and a half times more frequently. In all of the petitions, nuisance-based lines appeared at least 50 per cent more frequently than land use-based lines. This shows that these five petitions rely most forcefully on nuisance-based argumentation for declaring slums illegal. We can therefore say that the declaration of slums as a nuisance performs their illegality, and conversely, declaring slums illegal presumes their ontological status as a nuisance. Related to the treatment of “slum illegality” as an ontological given is the petitions’ extensive use of photographs showing slums-as-nuisances. These photos appear in the petitions as annexures and show both the presence of the slum as well as what the petitioner considers ill effects of the slum’s presence: accumulated trash, standing water, stray animals, open defeca-tion, etc. The manner in which these photos are described makes it clear that the petitioner expects the court to agree that the photos demonstrate a need to remove the slum: “The acuteness of the situation can [be] seen clearly from the photographs of the affected area.”27 All of the petitions’ bold, dehumanising claims about slums as spaces of filth are given moral licence upon the presentation of a few photographs. It is useful to note here thatthe Manchanda petition we examined in Section 2, which was submitted prior to the rise of the new nuisance discourse, did not make use of such photographs. This type of depiction therefore appears as a new visual technology that puts thebenchinaposition to see slums and slum-derived nuisance as one in the same. The power of this technology is revealed in the case of R L Kaushal vs lt governor of Delhi, the petition for which differs
SPECIAL ARTICLEEconomic & Political Weekly EPW may 17, 200865from the five nuisance discourse-based petitions examined here in that it neither prays for the removal of a slum nor uses any of the above discursive devices. This petition was submitted “for better civic amenities and for nuisance caused by open wide drain (sic)”,28 but does not make a single mention of a slum. Only in the petition’s annexures containing letters to elected representatives and photos of the drain is it revealed that a slum exists beside the drain. Nonetheless, the court, noticing the slum’s presence in the photos,29 ordered its demolition without inquiringinto the details of the settlement’s size, location, history, or legal basis. Each of the five petitions examined here was met with a positive response by the Delhi High Court, which not only ordered the neighbouring slums to be cleared, but in many cases also adopted the language of nuisance in emphasising the priority basis on which the demolitions should take place. As the court stated in an interim order in the Vikas Puri case in March, 2006:The encroachment has not been removed and it is this lacklustre approach of the DDA which has resulted in unscrupulous elements to make encroachment on government land…[W]e only observe that on the one hand a citizen has to pay handsome price for acquiring land… for his habitat and on the other hand unauthorised encroachment and habitat on government land is allowed to go on, [which]… deprives the rights of citizens of Delhi to water, electricity and other civic services. The right of honest citizens in this regard cannot be made subservient to the right of encroachers (sic).30 Here, we see the same process of dehumanisation found in the RWAs’ petitions repeated by the bench: slum residents are called “unscrupulous elements”, whereasRWA members are called “citizens”. And, in constructing the second sentence quoted above in the passive voice (i e, without a subject), the court completely erases the slum subject from the order. This makes the solution to the “problem of the slum” appear purely technical, despite its deeply ethical and political nature. In reiterating the reasons for needing to remove the entire slum in question, the order further states:We have seen from the photographs filed as to how illegal electric connections have been taken, the Delhi Vidyut Board has been used as a junk yard, service lane has been completely blocked [by carts and supplies], the encroachment has been made on road and footpath…. The whole area has been converted into a garbage landfill. No legal right is vested in the encroachers (sic).31Here, with the exception of “the encroachment… on road and footpath”, none of these activities statutorily permits the removal of the slum. The huts built on the roads and footpaths, as shown in the drawing submitted by the petitioner, made up less than 10 per cent of the total area of the slum and were the most recently constructed. However, the court lumped the entire settlement together in passing its demolition order. The court’s other obser-vations here must then constitute the only reasons for clearing the entire settlement. On what basis do these activities – i e, illegal electricity use, blocking a service lane with carts, and using vacant land for dumping garbage and scrap material32 – add up to a demolition notice? “Illegal electric connections”, according to the Electricity Act, 2003, require imposing a fine. The remaining activities are nuisances whose removal is governed by section 133 CrPC (see Section 2), which nowherestatesthatthe party responsible for a nuisance is to be displaced. However, nuisance law today clearly has new legal and moral coordinates.Slums as PollutersThe overall thrust of these five petitions shows that nuisance has today become the predominant discursive justification for slum demolitions, even when a land use violation is also identified. Further, even in the absence of petitions that specifically target slums for demolition, like the Kaushal petition just described, the courts themselves have taken up the task of identifying slums-as-nuisances and ordering their removal. This pattern emerged in the proceedings leading up to the demolition of the Yamuna Pushta, a slum housing more than 1,50,000 people on the banks of the Yamuna river. In a March 2003 order in the Okhla case, the bench arbitrarily took cognisance of the problem of pollution in the Yamuna river, despite the lack of any mention of the issue in the original petition. While referring to other causes of pollution, the bench quickly identified the true source of the problem: “In view of the encroachment and construction of jhuggies/pucca structure in the Yamuna [river] Bed and its embankment with no drainage facility, sewerage water and other filth is discharged in Yamuna water (sic)”.33 In the total absence of any evidence demonstrating the Pushta settlement’s contribution to the Yamu-na’s pollution levels, the court passed its demolition order. The court in a later judgment34 justified this order by referring to the Pitampura case, which we showed in the previous section to be the case that most strongly equates slums with nuisance. After these orders were passed, the court continued to target slums as the primary source of Yamuna pollution by launching its own suo motu case.35 And, like the RWA petitions we just examined, the most “scientific” evidence presented in this case was a series of photographs prepared by the ministry of tourism ostensibly showing slum-dwellers as polluters. While the final judgment in this case does refer to the fact that Pushta existed on the Yamuna floodplain and thus violates the layout plan for the area, a handful of other developments with a different “look” than Pushta – including the Akshardam temple, the Commonwealth Games Village, and the Delhi Metro Rail Depot – similarly fall on the floodplain. The fact that the court targeted Pushta and ignored these developments proves that the nuisance logic formed the strongest basis for the demolition.Closing with the Pushta case is useful because it neatly cap-tures key characteristics of how nuisance has altered the terrain of judicial argumentation pertaining to slums. This case shows that the courts do not have anything close to what could be called a sound calculative basis for assessing whether a slum is a nuisanceor not. Rather, if a slum appearsto be polluting or filthy, based on a judge’s subjective view of acceptable, “clean” conduct, then the slum is deemed polluting, a nuisance, and therefore illegal.5 ConclusionsThe goal of this paper has been to move the conceptualisation of Delhi’s current slum demolition drive away from the abstract dis-cussion of “anti-poor” courts and into the concrete and practical domain of legal mechanisms and argumentation. Stating that theright to life under Article 21 of the Constitution is no longer
SPECIAL ARTICLEmay 17, 2008 EPW Economic & Political Weekly66interpreted in the liberal, democratic tradition of the past provides little insight into the actual legal and technical means by which slum demolitions are carried out. The argument put forth here is that a discursive regime, or a “regime of truth” as Foucault would call it, does not change simply on the basis of a new outlook by judges or the entry of a new type of petition. Rather, such a drastic reorientation of juridical discourse and opinion requires an al-together new set of problems, a redefinition of terms, and a re-engineering of techniques. That is to say, rather than seeing the weakening of the right to life in recent court decisions as the cause of slum demolition, it might be more useful to see this weakening as the effect of a whole series of prior negotiations and contesta-tions over the meaning of citizenship, the correct land disposition, and the vision of the city. Here, I have shown that the reinterpreta-tion of nuisance law has been the key mechanism by which these contestations were, first, carried forward and, second, discursively justified by constructing the truth that “slums are nuisances”. In the paper’s introduction, I described discourse analysis as a powerful method for uncovering the strategic function of a text. However, the analysis presented here shows discourse to be not just a useful methodological object, but to also have profoundly material effects. As we saw above, the discursive portrayal of slums as nuisances is radically transfiguring Delhi’s physical landscape and political economy. It is enforcing a private property regime that has never before existed and redefining the terms of access to the city through the construction of property-based citizenship. This conclusion has serious implications for the future of Delhi and Indian urbanism more generally and might be used to more broadly explore contemporary processes of urban change in India. For one, discourse depicting Delhi as an aspiring “world-class” city has been little analysed to date. Yet, the coordi-nates of the moral grid created by the new nuisance discourse closely align with the vision of a world-class city. That is, spaces that appear polluting or unattractive – which unfavourably represent Delhi in its “world-class” pursuits – are being aggres-sively criminalised and cleared via nuisance law, even in the absence of accurate information about those spaces. Alterna-tively, developments that have the “world-class” look (e g, Akshardam temple),despite violating zoning or building byelaws, are granted amnesty and heralded as monuments of modernity.36 Returning to one of the formal definitions of nuisance laid out in Section 2 – “any… offencetothesenseof sight, smell, or hearing” – we see that “nuisance” could bebroadly construed as anything aesthetically displeasing. In the context of a city driven by an elite aspiration for “world class”statusandin which the economy of appearances is of elevatedimportance,might it be the case that nuisance has become the legal foundation for a new aesthetic authoritarianism?Notes 1 The Code of Criminal Procedure, 1973, Section 133. 2 AIR 1980 SC 1622, see also, MANU/SC/0086/1978, Govind Singh vs Shanti Sarup. 3 See, for example, CA No 1019 of 1992 in the MP High Court, Dr K C Malhotra vs State of MP. 4 CWP No 531 of 1990 in the Delhi High Court. 5 1996 2 SCC 594. 6 2000 2 SCC 679. 7 Anti-poor environmental discourse has circulated widely in India since colonial times. See A Sharan (2006), G Prakash (1999). For a discussion of contemporary bourgeois environmentalism in Delhi, see A Baviskar (2003). 8 The Delhi Master Plan, a statutory document that lays out planning norms and guidelines for prospective 20-year periods, establishes planning law in Delhi. Most relevant here is the guideline to provide 25 per cent of residential land to the Economically Weaker Sections (EWS) and Lower Income Group (LIG). See G D Verma (2001). Verma deftly shows how the current slum popula-tion is equal in size to the gap between the EWS housing stock the DDA was supposed to build according to the Delhi Master Plan 2001 and the DDA’s actual EWS housing provision. 9 CWP No 4215 of 1995 in the Delhi High Court.10 Ibid.11 See note 3 above.12 Wazirpur Bartan Nirmata Sangh vs Union of India and Okhla Factory Owners’ Association vs Government of NCT of Delhi, CWP No 2112 of 2002, 108(2002) DLT 517.13 During previous cases, judges considered the circumstances leading to the settlement of a slum. In particular, see Olga Tellis vs Municipal Corpo-ration of Greater Bombay, AIR 1986 SC 180, and Ahmedabad Municipal Corporation vs Nawab Khan and Ors, AIR 1997 SC 152.14 Ibid, and P G Gupta vs State of Gujarat, (1995) Supp 2 SCC 182. 15 See Ramanathan (2006) in note 2 for a discussion of the Olga Tellis case and the interpretation of Article 21 therein.16 See U Ramanathan (2006); P Bhushan (2006). 17 See note 12.18 The judgment goes onto say that the former occupy areas of land adjacent to the latter, making the latter “inconvenienced”: “An unhygienic condition is created causing pollution and ecological problems. It has resulted in almost collapse of Municipal services”. Thus, we come full circle: inadequate municipal services are not the cause of nuisance, but rather the outcome according to the new nuisance discourse.19 See note 9.20 Compare this dual categorisation of citizenship with the distinction between “civil society” and “political society” in P Chatterjee (2004). 21 See note 13, Ahmedabad Municipal Corporation, paragraph 20. 22 CWP Nos 593 of 2002, K-Block Vikas Puri RWA vs MCD; 6,160 of 2003, Maloy Krishna Dhar vs Government of NCT Delhi; 8,556 of 2005, Kailash Fraternity vs Government of NCT Delhi; 3,494 of 2006, Pawan Kumar vs MCD; and 9,358 of 2006, Jangpura RWA vs Lt Governor of Delhi.23 CWP No 593 of 2002.24 CWP No 9358 of 2006. 25 Ibid.26 Likewise, nuisance-based petitions are not the only type used to target slums. 27 CWP No 6160 of 2003.28 CWP No 1869 of 2003 in Delhi High Court, order dated November 14, 2003.29 Ibid.30 See note 23.31 Ibid.32 It should be noted that there is no indication that the slum residents alone were to blame for the improper garbage disposal. 33 See note 12, order dated March 3, 2003.34 Ibid, order dated October 19, 2003.35 CWP No 689 of 2004, The court on its own motion vs Union of India. 36 Numerous other examples of the DDA and courts allowing blatant land use violations for capital intensive development can be cited, including – perhaps most famously – the construction on Delhi’s protected “ridge area” of India’s largest shopping mall complex in Vasant Kunj.Indian Express, ‘VK malls: SC sets Aug 8 deadline for forest ministry report’, July 28, 2006.ReferencesBaviskar, A (2003): ‘Between Violence and Desire: Space, Power and Identity in the Making of Metro-politan Delhi’, International Journal of Social Science, 55(1), pp 89-98. Bhushan, P (2006): ‘Has the Judiciary Turned Its Back on the Poor?’ presented November 4th at the seminar of the same name, Indian Society for Inter-national Law, available from Campaign for Judicial Accountability and Judicial Reforms (CJAR) web site: http://www.judicialreforms.org (accessed October 4, 2007).Chatterjee, P (2004): The Politics of the Governed: Reflections on Popular Politics in Most of the World, Columbia University Press, New York.Divan, S and A Rosencranz (2001): Environmental Law and Policy in India: Cases, Materials and Statutes, Oxford, New Delhi. Foucault, M (1976): Knowledge/Power, C Gordon (ed), Pantheon, New York. – (2006): Security, Territory, Population, Palgrave MacMillan, New York, pp 35-36.Ghertner, D A (2005): ‘Purani Yojana Ki Kabr Par Nayi Yojana Ki Buniyad, Delhi Master Plan 2021’, Yojana, July.Jain, A K (2005): Law and Environment, Ascent, Delhi.Prakash, G (1999):Another Reason: Science and the Imagination of Modern India, Princeton Univer-sity Press, Princeton.Ramanathan, U (2006): ‘Illegality and the Urban Poor’,Economic & Political Weekly, 41(29). Roy, D (2004): ‘Democracy and Justice’, available from the CJAR web site, htt://www.judicialreforms.org.Sengar, D S (2007): Environmental Law, Prentice-Hall of India, New Delhi, pp 116.Sharan, A (2006): ‘In the City, Out of Place: Environment and Modernity, Delhi 1860s to 1960s’, Economic & Political Weekly, 41(47), pp 4905-11.Verma, G D (2001): Slumming India, Penguin, New Delhi.

Dear reader,

To continue reading, become a subscriber.

Explore our attracive subscription offers.

Click here

Comments

(-) Hide

EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

Back to Top