Judicial constructions: modernity, economic liberalization, and the urban poor in India.

Author:Gupta, Priya S.
Position:Introduction into III. Urbanism, the Emergent Middle Class, and the Slum Resident in Case Law, p. 25-57


Comparative legal research in property and urban planning law has taken an increasing interest in the policy patterns and legal arguments that municipal bodies and courts employ in the implementation of often radical urban reconfiguration. Aided by geographers, sociologists, and political economists, comparative property law scholars have begun to unearth the justificatory frameworks that underlie and shape these changes in metropolitan urban landscapes and that reveal an interplay between tangible and immediate modes of political constituencies' interest navigation on the one hand, and deep-seated cultural-historical motivations as well as commitments to transnational strategic and political loyalties, on the other. These modes of research have worked to show how urban 'local' decision-making is embedded in complex and entangled policy considerations, which are expressed through the use of economically minded categories such as progress, modernization, growth, and development.

The following Article focuses on the case of urban modernization policies pursued and implemented in one of the world's largest metropolitan centers--India's capital, Delhi--which is also one of the world's global cities currently undergoing a radical and breathtaking transformation. Embarking on a micro-analysis of the justifications offered in the pursuit of a 'cleaner,' more 'modern,' and 'competitive' metropolis, this Article examines a series of judgments regarding the rights of urban slum residents. Particularly, the Article applies two analytical and conceptual lenses in studying the regulatory policies and the courts' engagement with them, namely the political economy of development and the ideational and ideological concepts of 'modernity' and 'neoliberalism.' The role of the judiciary in the allocation of property and urban space functions hereby as the site of engagement, the place where the regulatory fiat is approved or rejected, reinterpreted and reshaped, endorsed and concretized. Through this analysis, the Article seeks to provide a richer context for the way in which a number of key Indian courts, including the Indian Supreme Court, have become actively involved in regulatory municipal policies. The Article highlights and analyzes the devastating effects of the recent judicial pronouncements for those constituencies who have long been at the margins and whose legal protection threatens to be further besieged and mitigated in a large-scale shift towards economic liberalization in the name of urban modernization and the city's competitive enhancement.

TABLE OF CONTENTS Introduction I. Debating Property Rights in Urban Development: Courts as Sites of Engagement II. Situating Modernity and Property in Postcolonial Urban India, Briefly A. What is Meant by Modernity? B. The Right to Property, Modernity, and the Indian Economy in the Socialist Constitutional Moment and the Decades that Followed 1. Modernity in the New Indian Economy 2. Modern Property Rights and Land Reform 3. Modernity Shifts from Socialism to Capitalism III. Urbanism, the Emergent Middle Class, and the Slum Resident in Case Law A. Olga Tellis and the Narrative of History, Circumstances, and a Respect for Pluralistic Contributions to Urban Life 1. History of Displacement 2. Intent and Circumstance 3. Recognition of Individuality and Contributions of this Population to Urban Life B. Olga Tellis Progeny Post Economic Liberalization 1. Almitra Patel, or the Loss of Individuality 2. Pitam Pura, or the Loss of Recognition of Circumstance 3. Okhla Factory Owners, or the Loss of History IV. The Judiciary's Role in the Construction of 'Modern' Cities and Citizens through Signals to Private Investors A. The Rise of Capital Investments in City Spaces. B. The Role of Courts in the 'Frictionless Landing' of Capital Investments in City Spaces 1. Signals to Investors a. Formality, Property Rights, and Rights of the Poor b. City Governance and Beautification 2. Shaping the Citizenry C. Alternative Narratives in Judicial Opinions Conclusion INTRODUCTION

"O Beautifiers of the City, did you not see that what was beautiful in Bombay was that it belonged to nobody, and to ad? Did you not see the everyday live-and-let-live miracles thronging its overcrowded streets?" (1)

In India, in 2014, one can now access tuberculosis (TB) medicine from the government at no cost. In some of the poorer areas in the country's capital, Delhi, one can even get the complete and directly observed therapy (DOTS) treatment for TB from the local convenience store. (2) Children can attend school without fees. In Delhi, if one can afford it, one can avoid the traffic and flooding of roads during monsoon season by taking the metro. Polluted tap water can be filtered to near perfect cleanliness in home filters that are affordable for the middle class. Medical tourists now come to Indian cities for much less expensive and 'world-class' treatments. There are fewer cows and monkeys roaming in many parts of Delhi now. (3) There are also fewer peacocks. Karim's, the famous Mughlai dhaba (restaurant) founded in 1913 near Jama Masjid in Old Delhi, has a video on its website that advertises (in English) its "state-of-the-art infrastructure," "well maintained supply chain," and "extensive range of products," as well as a menu that is primarily in Urdu and Hindi. (4)

As is now trite to observe, urban areas in India defy neat classifications, both with regard to the activities that take place there, and the citizens living in them. And yet, as the examples above illustrate, there have been some marked changes since the much-discussed process of 'economic liberalization' began approximately three decades ago. (5) The cited examples, while anecdotal, hint at changes on the grander scale of things. While a complete picture of the massive political, economic, and societal transformations taking place is beyond encapsulation, studying the related phenomena of urbanization and capitalism can provide insights into the reconfigurations of everyday lives of citizens and therefore of society's understandings of and engagements with larger undercurrents of change.

The power of these forces--the urban and the capitalistic--in the Indian imaginary is most clearly observed in the rise of the new 'middle class' in India. The new 'middle class' (6) is both imagined in its conglomeration of lifestyles, wealth, and upward mobility, and real in its ascension as a demographic. As Goldman Sachs describes it, the middle class can be described as the emerging class of citizens, who drives "demand for personal items such as mobile phones, televisions, personal computers and autos, while also contributing to increased demand for infrastructure services such as electricity, transportation and banking." (7) It is defined by this emphasis on consumption--and in the case of the middle class that resides in cities--consumption packaged with ideas of technological and urban sophistication.

With this turning of cities towards the middle class and their lifestyles, where are the urban poor in this sea of change? And, more literally, where are they in the cities in which they reside? As David Harvey and others have argued, the growth of urban slums (8) is inseparable from urbanization and capitalism which bring increased employment opportunities but few spaces for low-wage workers to live. (9) In the case of India, the inhabitants of the slums are often rural residents who have moved to cities in search of work, which may include construction work in the growing real estate industry. The existence of employment, however, does not ensure health or shelter. As The Hindu, a leading Indian newspaper, recently reported, over half of Delhi lives in slums, without access to basic services. (10) The contradictions in their lives of increasing access to some human rights and yet increasing insecurity with respect to their residences represent yet another challenge to telling a cohesive story of economic liberalization and societal reconfiguration.

A central contention of this Article is that legal scholars, when faced with such large-scale constellations of socio-economic change and regulatory transformation, are prompted to widen their analytical and conceptual lenses in order to gain an adequate understanding of how different institutions, including governmental agencies and courts, operate in the midst of such change. In order to understand the motivations behind particular policy decisions as well as court judgments, it becomes necessary to analyze them against the background of the alluded-to regulatory and political changes. Such an analysis operates on two levels--the bottom-up study of court decisions on the one hand, and the encompassing discursive framework, which comprises official institutional announcements as well as rhetorical turns, on the other.

In the case of India's continuing economic and regulatory transformation (11) we find a challenging example of large scale political transformation that, rhetorically, occurs through recurring references to the country's (and its cities') commitment to seemingly uncontested 'values' of modernity, development, and economic prosperity and, institutionally, appears to translate into concrete outcomes and socio-economic redistribution. Studying, in particular, the way in which Indian courts have authorized the clearance of slum residences and other forms of precarious occupation, the goal of this Article becomes one of illuminating--but not overstating--the connections between these judicial endorsements to 'clean' city centers of slums and other forms of delegitimized occupation and the large-scale, political rhetoric of modernity. The challenge of embarking on such analysis lies in the method of placing the court decisions in question in this larger context without, at the same time, suggesting or resorting to simple causation patterns. In other words, the point to be made is...

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