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

• Author: Gupta, Priya S.
• Position: Continuation of III. Urbanism, the Emergent Middle Class, and the Slum Resident in Case Law through Conclusion, with footnotes, p. 57-90

1. Olga Tellis and the Narrative of History, Circumstances, and a Respect for Pluralistic Contributions to Urban Life

   The foundational case of modern treatment of slum residents is Olga Tellis, a Supreme Court case from 1985 in which pavement and slum residents in Bombay brought suit against the state and local government for their plans to remove them. (125) They alleged, inter alia, that (1) the government removal of pavement and slum residents violated their right to life (enshrined in Article 21 of the Indian Constitution) by precluding access to their ability to earn livelihood, and (2) this removal would also violate a property claim regarding a right to occupy public land. (126) The government claimed that the residents did not have any rights to trespass public land and prevent free movement of pedestrians on sidewalks. (127)

   On the first claim, the Supreme Court found in favor of the pavement and slum residents, with certain qualifications. They set certain conditions for the removal of slums sympathetic to slum residents, including that slums which had been in existence for more than twenty years and which had been "improved and developed" would not be removed unless the land on which they stand or the appurtenant land was required for public purposes, in which case, alternate sites or accommodation would be provided. (128)

   Regarding the second argument, that slum residents had a right to be on public property, the Court did not find for the residents, and stated that "no person has the right to encroach ... on footpaths, pavements or any other person reserved or earmarked for a public purpose." (129) The language is unequivocal and indicated that such a person "becomes a trespasser." (130)

   While Olga Tellis is groundbreaking, and a high point for those who are forced to live on pavement and in slums, it merits still further exploration, given the trajectories that have followed from it. It is true that the Court's ruling is more accommodating of the rights of pavement and slum residents than what might have been expected. The argument here, however, is that the significance of the decision lies in large part with the way that pavement and slum residents are respected as citizens and individuals (to some extent) and how legitimate uses of space are constructed. Moreover, as explained below, the qualifications (131) to the provision of alternative sites of residence left the law open for later reinterpretation and narrowing.

   Three narrative threads in the case reflect the Court's recognition of the ways in which these populations were being left out of the benefits of development, while bearing the brunt of shifts in the economy as it moves towards privatized industrialization and service. These narrative themes are: (1) the historical and economic circumstances of their marginalization, (2) their intent to reside where they do, and (3) their contributions to urban life. This respect for their agency and the recognition of the role of the state and market in creating these circumstances and constraints on their ability to live with dignity all but disappear in the later opinions discussed below.

   1. History of Displacement

      An acknowledgement of how slum residents ended up in their living situations permeated the opinion and drove the ruling. Bombay and Delhi (like many other cities) do not have public or low cost housing. Though such housing is provided for in various city plans, there has been no significant implementation of these provisions. (132) The residents who live in slums and on pavements are often displaced rural populations who moved to the cities for better employment opportunities as the primary engines of the economy moved from rural to urban settings. The common sequence of events which led to these slum residents living on the outskirts of legality was recognized in Olga Tellis.

      [O]ne of the main reasons of the emergence and growth of squatter-settlements in big Metropolitan cities like Bombay, is the availability of job opportunities which are lacking in the rural sector. The undisputed fact that even after eviction, the squatters return to the cities affords proof of that position.... These facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is nowhere else to live. Evidently they choose a pavement or slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being forbidding for their slender means. (133) Once these residents find themselves in slums and pavements, they often are subject to cycles of demolition and displacement in the name of development or, more recently, beautification. Rehabilitation and relocation for these residents is spotty and rarely delivered, if promised at all. (134) This history of the economic shifts recognized here (and explored above in Part II) is relevant to understanding the limited choices of poor urban populations with respect to employment and residence. This history is lost in subsequent cases when the recognition of the context of how and why residents live on the streets or on other public land does not appear to be a factor in the courts' decisions. Once this history is not acknowledged, the logic of accommodation of their circumstances falls away. Slum residences appear to be trespassers, occupying urban spaces for no clear reason except opportunism, and are then deemed undeserving of minimum welfare provisions.

   2. Intent and Circumstance

      After recognizing the prevalence of rural unemployment which compels many to move to the cities, the Court recognized that the petitioners had not intended to '"commit an offence or intimidate or annoy any person,' which is the gist of the offence of criminal trespass under Section 441 of the Penal Code." (135) Instead, the Court observed that:

      They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. The encroachment committed by these persons are in voluntary acts in the sense that they are not guided by choice. (136) By disavowing the petitioners of 'intent' to encroach, the Court prevents them from being found in criminal trespass. This lack of criminalization is significant. It rests on an understanding of how and why these populations are living on land that is not legally theirs to possess. Moreover, it respects the resilience of the marginalized to survive through their own hard work and determination. Living on pavement is not an ideal circumstance, nor is it conducive to a life with emotional or physical security or health. And yet, these populations survive in such situations, and the Court, in avoiding criminalization, refrains from further de-humanizing them and their existences. It is only through the recognition of the history and structural economic conditions that this characterization of a lack of intention to offend appears to be a natural conclusion. And, when such history is left behind in subsequent opinions, the door is left open for criminalization, or at least illegitimacy, to reappear.

   3. Recognition of Individuality and Contributions of this Population to Urban Life

      The Court also articulates respect for these citizens by building a record of facts based on their very high employment figures and skills. (137) They also refer to several individuals, including a college graduate and a poet. (138) This recognition of individuals both humanizes and builds respect for the agency of these populations in the audience--be it a legal or popular one. These are not masses of indistinguishable poor, at least according to parts of the opinion. (139)

      That said, though, the valuation is primarily justified based on economic considerations regarding this population's productivity, without regard to the communities they have formed which eviction would disrupt or their value simply as human beings. In later opinions and in later times, the citizen-agent of economic productivity is no longer the general working citizen, but rather the urban middle class consumer. As explained further in Part IV, once this shift happens, the slum resident is no longer seen as economically productive (despite their actual employment), and is considered to be a drag on the modern economy and beautified city.

2. Olga Tellis' Progeny Post Economic Liberalization

   Various cases interpreted Olga Tellis first faithfully (140) and then increasingly narrowly, with fewer allowances of rehabilitation for the pavement or slum residents. (141) This section explores three cases since economic liberalization that narrowed the abilities of the urban poor to stay in their residences or access alternative ones and the rhetoric used by courts in justifying this. Reading later cases, the declining legacy of Olga Tellis becomes more apparent: these cases rely on each other and not on Olga Tellis in their endorsement of the attitude adopted towards the urban populations. These opinions weave an account of the circumstances of populations that is tied up with conceptions of morality, hygiene, and modernity. The impact that this use of precedent has had on the rights position of the affected population could not have been more stark: not only did the change in the law lead to an illegalization (142) of these populations' existences in their accustomed-to urban spaces, but the characterization of these places in particularly conceptualized urban societies (both physical and existential) through specific language and historical framing made these legal shifts appear natural and desirable.

   The historical and socio-economic contexts of how these populations ended up in the slums that Olga Tellis acknowledged--rural displacement and a need for employment--is not recognized in these cases. (143) That...