Sustainable Urban Development vs. Facts on the Ground

By Christian van Laak (CDHR)

LogoThe introduction to the SDGs states emphatically that development should “benefit all, in particular the children of the world, youth and future generations of the world without distinction of any kind such as age, sex, disability, culture, race, ethnicity, origin, migratory status, religion, economic or other status” (Introduction Art.3).

Before the SDGs adopt a rather technocratic language, the SDGs quite frankly refer to a concrete human right of ones, who live in an indefensible underdeveloped environment. They should be the ones profiting from future developments in the name of the SDGs. The situation of up to 100 million slumdwellers[1] in urban India is addressed in the 11th SDG on “inclusive, safe, resilient and sustainable cities and human settlements”. But as the facts are on the ground, too often the urban poor are harmed by what is supposed to be development, namely by slum resettlements for somebody else’s benefit. The SDGs have to prove that they can change these facts of development.

The Kathputli case

One of the latest and most prominent cases of a slum resettlement in India is the case of Kathputli, a colony of about 2800 to 3200 households close to Shadipur Metro Station in western Delhi. Kathputli was founded by just a few families migrating into Delhi from Rajasthan in the 1950s or early 60s, most of them engaged in puppetry and other traditional performing arts. Since then the colony has attracted many artist families, migrating from other Indian states and eventually a whole variety of people of all kinds of trades, backgrounds and religions.

Nowadays Kathputli is a multicultural and multi-religious community, but it has still preserved its cultural heritage through its core population of Rajasthani artistes. Besides its diversity, also in terms of its inhabitant’s economic conditions – poverty is prevalent, but one can also see modest wealth here and there – all people of Kathputli lack a legal title to their dwelling space and they all have to cope with an underdeveloped infrastructure in terms of fresh water and sanitation.

Streets of Kathputli

[picture 1: Subtitle: The streets of Kathputli, Photo credit: Christian van Laak]

The first plan to redevelop or resettle Kathputli colony dates back to 1991. But only after 2009 the Delhi Development Agency (DDA), formal owner of the plot which is covered with a warren of one story brick houses of Kathputli, has published details of a plan to resettle the colony in favour of a complex of luxury homes including a 54 stories, 190m high skyscraper. In contrast to former slum-resettlements of such a large scale in Delhi, the inhabitants of Kathputli would not simply be given new and far off dwelling places on the outskirts of the mega-city. In this case the DDA opted for an in-situ resettlement, as it has been done before elsewhere in India, mostly in Mumbai, but never before in Delhi.

Raheja, the development company awarded with the project, is supposed to reserve several 14 story apartment complexes on a small portion of the land for the slumdwellers. These apartments will of course not be as luxurious and spacious as the ones for the open market. But 2800 families of the colony will be eligible for moving into apartments of 30 square meters each, fitted with modern facilities.

At least this will allow the community to stay in their urban environment, social bonds and access to urban infrastructure, to jobs and audiences for their performances might be preserved: Clearly, this is a step forward in comparison to most other resettlement projects in Delhi up to this date. Some smaller steps forward have also been taken in terms of transparency, as at least some information is provided publicly, and the DDA has at least promised not to evict anyone in Kathputli against its inhabitant’s will.[2]

A clear disadvantage of the in-situ scheme is that people will have to move twice, once to a transition camp and then about two or three years later into the new permanent structures. And in practice things look even worse than in theory. There are good reasons why many of the inhabitants fundamentally oppose the DDA’s plan and try to stay in their current homes, at least for as long as possible. Many inhabitants complain about the uncertainty, if they are personally eligible for a new apartment. Referring to a survey conducted in 2013, the DDA speaks of 2800 families, which are considered “legitimate” inhabitants, but it since refuses to publish a list of these eligible families. However the Kathputli based NGO House of Puppets speaks of at least 3300 families, the Hazard Centre NGO speaks of 3400. But even this higher numbers don’t include the inhabitants who don’t belong to established families. The meaning of a ”legitimate inhabitant” simply remains unclear. The Human Rights Law Network NGO assumes that inhabitants are only considered legitimate if they could prove to the DDA that they resided in the colony as a family prior to March 2009.

But the DDA also leaves inhabitants in the dark about the conditions under which they might move into new apartments. For example the artists of Kathputli have genuine doubts, whether they will find spaces to practice in their new environment and consequently see their occupation and lifestyle in danger. For them, this might even be the main reason to oppose the plan. This is quite understandably, as their lifestyle, culture and identity is deeply rooted in Kathputli.

Furthermore Kathputli is a quickly growing community. The number of children of all ages one the streets in an afternoon depict the trend shown in Censuses of 2001 and 2011. An apartment of 30 square meters for each family, no matter how many family members, will hardly offer enough space, and it won’t certainly be able to support the growth of a family over the time.

The completion of the project once was envisaged for 2012, but only 500 families have moved into the transition camp up to September 2014. According to the Housing Rights Network NGO these families were some of the poorest in Kathputli, and predominantly the ones who aren’t involved in traditional performing arts. Improving one’s chances of being eligible to an apartment in the new structures by cooperating with the DDA, was a reasonable price for these poorest families, but others inhabitants of Kathputli say that these families compromise their mutual case.

The ones who are willing to stay in Kathputli as long as possible are faced with different kinds of oppression. For example the public school in the colony has already been closed and thus leaves the children of all families, who are willing to stay, without access to education. People are also faced with increasing police violence. The situation escalated on 11 August 2014 and lead to arrest of about 30 inhabitants and left many injured, including women and children. The community eventually mistrusts all involved authorities. They especially mistrust the DDA’s reaffirmations that they won’t evict the colony against their will, as they are faced with violence from their side almost on a daily basis.

Delhi has seen many slum evictions which were anything but nonviolent in recent years. One of the latest evictions took place in Aya Nagar, a colony on the south-western edge of Delhi. A plan for an eviction has not been promulgated in advance, however there have been rumours lately that said plot would be used for building a hospital. The inhabitants of a small slum settlement of about 250 houses became suspicious only when their electric meters were suddenly removed in the early morning of 11 September 2014. Bulldozers appeared shortly thereafter and the colony was demolished in no time and under heavy police protection. The details of the course of events however remains unclear, but local activists report two casualties among the slumdwellers.[3]

Destroyed jhuggis in Aya Nagar

[picture 2: Subtitle: Destroyed jhuggis in Aya Nagar, Photo credit: Christian van Laak]

The strategy behind an eviction such as seen in Aya Nagar is to demolish the settlement before it arouses opposition, media coverage or any kind of wider resistance – and often to use relentless force.

A relatively effective strategy to prevent such events in favour of the slumdwellers is to mobilize legal resources against an eviction, even when bulldozers are already at the scene. NGOs such as the Human Rights Law Network usually try to obtain a protective stay order on the basis of the Indian Constitution of 1949. Article 21 guarantees the “protection of life and personal liberty”, a right which can be interpreted as a right to housing, and which can be positioned against demolitions, if the slumdwellers will not be properly compensated with new habitations.

This strategy couldn’t be adopted in the case of the the all too sudden events in Aya Nagar. Several families started rebuilding their homes in the same place a few days after the events and will probably be threatened with the same brutality again and again – others have simply disappeared and will try to start anew somewhere else without any resources.

The disturbing case of Aya Nagar, a relatively small eviction that could be carried out fast, rigorous and without any prior notice, is surely not to be compared with the resettlement project of Kathputli, which is highly prestigious for the DDA. But it clearly shows how much the DDA value a slumdweller’s interest or even his or her life. The strategy of trying to obtain a a protective stay order will also not be applicable in the case of Kathputli colony, as compensation is granted, even though conditions are unclear and the plan goes clearly against the interest of the colony’s inhabitants.

In March 2014 however habitants of Kathputli filed a petition claiming that a list of eligible families had to be published and that practice facilities had to be provided in order to protect their occupation as artistes according to the Delhi Masterplan 2021. This petition was simply dismissed and consequently all legal resources seem to be depleted – at least for the moment as the further course of events cannot be foreseen.

Legal claims against Developments

The case of Kathputli colony poses some general questions. First of all it is apparent that Delhi doesn’t offer enough and affordable housing or legal dwelling places for the urban poor, a situation which has worsened gradually for many years. In 2014 at least 30 percent of Delhi’s inhabitants live in unauthorized colonies according to official numbers, but factual numbers might exceed this percentage by far and might even be as high as 50 percent.[4] This means that between 5 and 8 million Delhiites don’t have a legal title to their home.

Slum resettlements are based on this very fact, and especially in this sense a slumdwellers’ life is very precarious. If slumdwellers resist being evicted, they can easily be stigmatized as illegal occupiers of publicly owned land, as people who do harm to the public and who are an obstacle towards a development of Delhi into a world class city. But they can also be seen as victims of a failed urban planning, as there is simply no place for them to live in a city, which is depends heavily on the cheap labour force of the urban poor.

Interestingly India’s legal tradition could offer legal resources in such cases and even an individual right to the slumdweller’s personal dwelling spot, if it was ever exercised in the courts in favour of them. Section 25 of the Indian Limitation Act of 1963 formally allows people, who have occupied publicly owned land for more than 30 years, to claim a legal title to this land on the basis of the right to adverse possession.

The idea behind this legal principle is that a landowner, who doesn’t make use of his possessions for an appropriate amount of time, indeed doesn’t have use for his possession. In contrast a legal claim might arise from the extralegal, yet factual use of the land. A graphic image of this principle, which is deeply rooted in common law, is given by Justice O.W. Holmes of the US-Supreme Court: “Man like a tree in the cleft of a rock, gradually shapes his roots to the surroundings, and when the roots have grown to a certain size, can’t be displaced without cutting at his life.”[5]

If the landowner, in this case the DDA doesn’t “assert one’s title”, as it is stated in the important precedent, and if another person exclusively holds the land for over 60 years, such as the people of Kathputli, the case should be clear.[6] The colony has existed on grounds formerly used by the Indian Railways for at least 60 years, while no one ‘asserted one’s title’, at least not in the sense that the plot was reclaimed, and not until recently. However adverse possession hasn’t been claimed so far and it is hardly ever claimed in the context of slum evictions. Cases against public authorities are mostly dismissed on the basis of a very wide and partisan interpretation of the meaning of ‘asserting of one’s title’. According to the Human Rights Law Network nearly anything might be understood as an ‘assertion of one’s title’ in favour of the authorities. In a case such as Kathputli’s, it might even mean the provision of basic infrastructure, built and maintained by the authorities, such as electricity.

In general decisions in these cases hardly ever recognize the rights of slumdwellers. In a quite recent case of an eviction in Delhi’s Karol Bagh neighbourhood in 2011, followed by an adverse possession case, the court dismissed the case simply as the plaintiff couldn’t present a legal title to the plot – according to the Human Rights Lawyers Network simply an invalid legal argument, as adverse possession is about a claim to a plot without having a legal title. However such decision are hardly ever appealed, in this case simply because further steps exceeded the plaintiff’s resources according to the National Campaign on Dalit Human Rights.

Lately India strengthened the right of landowners in cases of land acquisitions with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013. But as a legitimate owner to a plot of land is exclusively defined as the bearer of a legal title, such new legislation won’t ever reach a dispossessed slumdweller. The appraised improvement won’t help the one’s who would need it the most.

A missing link between development and protection of Human Rights

Slum redevelopments, especially the in-situ resettlements such as planned in Kathputli, don’t aim at the improvement of the situation for the urban poor in the first place. Their objective is rather the development of Delhi into a world class city with world class amenities for the upper middle class. At least the inhabitants of Kathputli will not just be moved out of sight and to the outskirts. But the approach itself remains questionable. It might admittedly promote a positive development, but it doesn’t bother to involve the voiced interests of the affected community and eventually accepts that the situation for many of them is worsening.

This kind of development can in general be seen as a development in favour of the affluent classes and their economic interests. It has to be criticized in the name of the Right to Development, a concept which is not as prominent as it should be in the discourse on the SDGs, in the debate which will have a big impact on future development projects.

A criticism against urban development in India also has to be a criticism against the current development discourse, as problems which are visible in India are not reflected in the discourse. Rethinking the 11th SDG on urban development in the sense of the Right to Development is therefore necessary. The urban sphere is not simply a place in which infrastructure and housing has to be organized as efficient as possible, so that people can please their presumed needs today and tomorrow. The urban sphere is the home of billions of people who bear rights, and outplaying rights and right bearers against each other in the name of development always means a violation against somebody’s rights.

The technocratic language of SDG 11.1 doesn’t take this into account. Development is neither reflected as a Right to Development, nor are there any reflections on Human Rights which might protect communities from misguided developments, which might even provide them with a right against misguided developments.

A wider notion of Human Rights understands these rights as individual and group related freedoms, and with reference to Amartya Sen’s reasonings as capabilities, as opportunities to achieve desirable and actually desired outcomes. An improved housing situation might be desirable for slumdwellers, it might in fact be highly desired, but even then it is in fact not desired at any price. The right to development lies with right-holder and should enable them to determine their future. In contrast the resettlement of Kathputli weakens its inhabitants capabilities and even endangers their livelihood, it therefore violates their right to development. If Kathputli is not just a single case, but an example for how current development in India and elsewhere in the Global South is understood, its criticism has to be heard in the debate around the SDGs.

[1] http://timesofindia.indiatimes.com/india/By-2017-Indias-slum-population-will-rise-to-104-million/articleshow/21927474.cms

[2]   http://www.kathputlicolonydda.com/

[3]   Thomas Crowley, „Demolitions in Aya Nagar”, http://kafila.org/2014/09/13/demolitions-in-aya-nagar-delhi-thomas-crowley/

[4]   http://citiesofdelhi.cprindia.org/reports/regularising-unauthorised-colonies-in-delhi/

[5]   William B. Stoebuck, „The Law of Adverse Possession”, (1960) 35 Washington Law Review, p. 53.

[6]   Perry v. Clissold (1907) AC 73, at 79