In Ajay Maken v. Union of India, a division bench of the Delhi High Court in 2019 held that slum dwellers possess the right to housing, and should be protected from forced and unannounced eviction. While protecting the housing rights of slum-dwellers, the Court invoked an idea popular in urban social movements and international conventions - "The Right to the City". But what is this right? How is it relevant in Indian jurisprudence? How can such a right work in the context of the high informality that characterises Indian cities?
The idea of the Right to the City
The "Right to the City" is an idea and a slogan that has been increasingly invoked in academic, activist and policy discourses on inclusive urbanization across the globe. It was first conceptualized by French philosopher Henri Lefebvre in 1967 in the book Le Droit à la ville (The Right to the City) in which he said, "the right to the city is like a cry and a demand… a transformed and renewed right to urban life."
According to Lefebvre, the Right to the City is the right of all urban inhabitants, not just citizens, to participate in and appropriate urban space and resources. This means that all urban inhabitants should have a role in decision-making regarding urban space and be able to access, occupy and use urban space. David Harvey, who further popularized this idea, explained that the Right to the City is a "common rather than an individual right" that seeks to transform cities by the exercise of collective power "to reshape the processes of urbanization."
The Right to the City has become a common framework for articulating alternative visions of the city and making a host of demands on issues related to urban equity and social justice. It has also been used for making urban governance, planning, and budgeting more participative and inclusive. Since the adoption of the World Charter on the Right to the City in 2005, the idea has also gained a lot of traction in various international forums. It became the linchpin driving the New Urban Agenda adopted in the UN Conference on Housing and Sustainable Urban Development (Habitat III) held in Quito, Ecuador in 2016.
Though not initially conceptualized as legal right, the Right to the City is increasingly gaining recognition in law, especially in the global south with legislative instruments acknowledging this idea in countries like Brazil, Ecuador and Mexico. Brazil's City Statute of 2001, for example, loosens the notion of individual ownership of property by privileging the social function of property over its commercial function and facilitates participatory forms of urban governance in which community groups play a key role in the planning and implementation of urban development projects.
The jurisprudence of Ajay Maken
Ajay Maken dealt with the legality of the demolition of around 1200 jhuggies in Shakur Basti, an informal housing settlement in Delhi. In this case, the Delhi High Court held that no authority shall carry out eviction without conducting a survey and consulting the population that it seeks to evict. Further, no eviction shall be carried out without providing adequate rehabilitation for those eligible for it as per the survey.
The Court observed that the concept of the "Right to the City" is relevant in this case as "an important element in the policy for rehabilitation of slum dwellers". It relied on the policy paper, Right to the City and Cities for All, brought out in the build up to Habitat III and cites its definition of Right to the City as the "right of all inhabitants present and future, to occupy, use and produce just, inclusive and sustainable cities, defined as a common good essential to the quality of life."
What makes Ajay Maken particularly relevant is that it marks a clear departure from much of the Delhi High Court's jurisprudence on housing rights of slum dwellers. The Delhi High Court had, over the last two decades, taken a proactive role in adjudicating on issues related to urban planning and used the narrative of 'public nuisance' to legitimise the demolition of slums and the displacement of its inhabitants. This case, along with Sudama Singh v. Government of Delhi that preceded it, broke away from the trend of the Court using its Public Interest Litigation jurisdiction to drive slum demolition in Delhi.
Drawing from judgments of the South African Constitutional Court, the Delhi High Court in both these cases held that any person who is to be evicted should have a right to "meaningful engagement" with any relocation plans. In Ajay Maken, the Court observed that a deliberative democratic practice like "meaningful engagement" enabled the Court to become "both a democratic space where such dialogue can take place and also the Constitutional authority that facilitates it." The final judgment in Ajay Maken was given only after a Draft Protocol for rehabilitation was drawn up after consultative engagements with key stakeholders including the residents of Shakur Basti.
Right to the City and urban informality
A large portion of the population in Indian cities lives in informal settlements and is engaged in informal work. Much of India's urban poor operate in the realm of informality, outside the planned vision of the city, in a complicated relationship with the law. They make claims on urban housing by first occupying a space and then incrementally build and obtain the relevant urban infrastructure and services through various informal tactics and negotiations with the state. It is essentially through such practices, which may not be strictly legal, that the disadvantaged groups in Indian cities often makes claims on the city and its resources and exercise their Right to the City.
The Right to the City formulates a new idea of citizenship based on inhabitance and participation in the quotidian practices and transactions in the city. It is an important idea for furthering the interests of people living in informal settlements and engaged in informal work as it goes beyond the law and recognizes the rights of all inhabitants to live, work and participate in urban life. It breaks the legal formalism associated with citizenship, occupation and housing and acknowledges that people living and working in conditions of informality have equal claims over the city.
 |
The invocation of the Right to the City in Ajay Maken opens the idea to multiple opportunities both within and outside the law. At the most basic level, it provides constitutional protection for slum dwellers against forced eviction and acknowledges the right to adequate housing. Beyond the law, the Right to the City may be exercised by urban inhabitants to legitimize their claims over housing through the process of occupying empty urban spaces, building houses, and incrementally accessing various resources connected with it.
The use of pavements by street vendors also offers an example of how disadvantaged sections of the urban population negotiate and access public space for pursuing their right to livelihood. These practices, ranging from street vending on pavements, to squatting on public lands and auto-construction of informal housing, allow urban inhabitants to make claims over the use of urban space and thereby exercise their Right to the City.
