BY LUBNA ANANTAKRISHAN
Lubna Anantakrishan is a MA student at SAIS DC, concentrating in Energy, Resources and Environment. With a regional focus on South Asia, her main area of interest is urban poverty, vulnerability and informality.
In April 2016, protestors from the group La PAH (Plataforma de Afectados por la Hipoteca, or “Mortgage Victims Platform”) occupied yet another bank in Barcelona (the Blackstone Group) to prevent the eviction of thousands of slum dwellers in the name of ‘city regeneration’.[1] Later that year, protests by thousands of residents of Otodo Gbame against forced evictions in Lagos turned violent.[2] Similar cries against the destruction of informal settlements have been heard across the world – the loudest of which, came from Rio’s favelas in the lead-up to the 2016 Olympics.[3]
Where do such protestors find the basis for defending what is essentially an illegal activity? The basis of this claim can be articulated by Marxist philosopher Henri Lefebvre’s concept of the ‘right to the city’. In short, he describes it as the right of no exclusion of urban society from qualities and benefits of urban life encompassing the civil, political, economic, social, cultural and environmental rights of all individuals involved in the urbanization process.[4],[5] Peter Marcuse and David Harvey, while arguing in favor of this ‘right’, note that it is not a legal claim enforceable through a judicial process.[6]
Why argue for such a right if we cannot work towards realizing it?
Housing is the most important asset of the urban poor. Blocking access to housing [Gc1] excludes the poor from public services, targeted subsidies, formal economic activities, political power. Housing can therefore be considered a gateway right in the urbanization process - a channel through which to formalize the ‘right to the city’. In this context, I want to explore two questions. First: should there be a defensible right for an illegal activity such as pavement or slum dwelling? And second, how can the spirit of the ‘right to the city’ be formalized in the context of illegal settlements?
My answer to the first question, in short, is yes. But to support the defense of this extra-legal ‘right’, I want to elucidate the distinction between rights and laws and propose that when in opposition, rights should trump laws. This should make intuitive sense for rights that are legally established, but the contention arises when the rights being claimed are not established and more importantly, are against the state. This leads to the question of how rights become rights.
As formulated here, the ‘right to the city’ is not a legal right, but a claim to a right. In recent history, there has been an evolution of what constitutes ‘rights’- through changing recognition of equal rights between races, sexes, genders and more. This does not imply that “new rights” suddenly came into existence; only that they became defensible by law. I argue that while the ultimate foundation of rights is ontological, the ‘rights’ are determined by prevailing socio-political consensus and then defended through legal mechanisms. Marcuse and Harvey seem satisfied with recognizing the ontological basis for this right - but for it to exist in any functional sense, the determination and defense of rights needs explicit attention.
Before rights are legally established, they need political consensus. In countries like India, rights are determined democratically through legislature. One of the grave risks of democracy is the suppression of individual rights based on the will of the majority - and therefore, safeguards of individual rights through political instruments like constitutional rights are crucial. Allowing democratic institutions to determine rights- especially rights against the state - seems inherently contrary to fairness.[7]
The Case of Mumbai
The residents of illegal settlement’s ‘right to the city’ falls in this difficult category of rights against the state since it involves illegal encroachments of public land and illegal use of public services amongst other infringements. This is the source of the tussle between rights, laws and politics that has played out in the slums of Mumbai in recent years.
In India, the constitutional right to life functioned as the proxy under which forced evictions were opposed. In 1989, the Supreme Court stated that housing of a certain standard was an ‘indispensable necessity’ and made resettlement a mandatory precondition for evictions from informal settlements.[8] The Court’s verdict thus echoes the claim that rights should trump laws.
However, this leaves slum dwellers at the mercy of changing legal interpretations and political climates. The Shiv Sena government, which appealed to the working-class voters in the late 1990s, stalled the urban renewal efforts initiated by the Congress government in Mumbai, thus protecting slum dwellers. However, the next Congress government, through the Development Control Regulations in Mumbai, began to ‘reclaim’ public land and convert it to higher-value uses like commercial spaces.[9] Moreover, the illegality of the settlements took precedence over the constitutional right to life. Slum dwellers went from people ‘pursuing occupations that are humble but honorable’ to criminal encroachers of land who had ‘no legal right, what talk of fundamental right, to stay there a minute longer’.[10] The right to life, therefore, failed as a proxy for the ‘right to the city’ due to its non-specificity[Gc2] .
In 2004-05, a city-wide forced eviction drive in Mumbai lead to the destruction of 80,000 informal settlements and displaced 300,000 people.[11] This politically driven ‘clean up’ in the name of urban renewal, lead to the destruction of legal houses within these settlements that were chalked up to ‘sacrifices’ made for the city’s development.[12] Ironically, much of the cleared land was not earmarked for any specific development project, and yet evictions were carried out, with notice ranging from zero to three hours prior to eviction.[13] Cases like this betray the illusion that ‘umbrella’ legal rights can protect against political actions and reflect the true vulnerability of slum residents.
Efforts to formalize slums in Mumbai after the backlash from the 2005 evictions, have been surrounded by much controversy regarding the ‘cut-off’ date and housing specifications for legalization. Only slums inhabiting city or state government-owned land before the cut-off date of 2000 are given a ‘notified’ slum status. This effectively excludes older informal settlements on central-government owned land and other informal settlements that have existed for close to a decade. As of 2015, almost half of Mumbai’s slum population (i.e. more than 3 million people) live in non-notified slums.[14] The notification status of slums determines access to crucial public services like water which influence health and quality of life.[15] Importantly, it is legally ambiguous whether the ‘fee’ paid by slum dwellers is a formal land-rent or a fine for occupying public land and leaves even notified slums without any legal claims to the land.
Governance and the Right to the City
This compromise (creating ‘notified’ informal settlements) arises from a host of urban governance issues. The slum population does not formally pay taxes to the government. Yet, legalizing illegal housing is a cost incurred by the government and includes subsequent costs of service delivery to notified slum households. Additionally, it brings up the question of the sustainability of this kind of legalization - since the city will be unable to provide an endless supply of affordable public housing to all those who wish to move to the city. The one-time legalization is the closest attempt to establish this right. But does this encapsulate the right to the city?
How long should one have lived in the city before they can claim a ‘right’ to protect their informal housing? Ten years? Five? What about the more recent migrants into the city? Should they be forced to leave? How does this ensure ‘unblocked access’ to the benefits of urbanization? At best, a one-time legalization only confers the right to the city upon current residents of the city-effectively making them more entitled to the city’s opportunities than those outside it. Therefore, even such a policy, fails to encapsulate the spirit of the ‘right to the city’.
Ensuring ‘open access’ crucially implies affordable access to housing and services in the city relative to the socio-economic needs of those wanting to live in the city. This could foreseeably lead to an exodus of rural-urban migrants, demanding subsidized housing and services. The benchmark for ‘affordable’ would have to be continuously adapted to the profile of migrants. Clearly such an overarching right encapsulating the spirit of the ‘right to the city’ is plainly unfeasible.
Dead-End Ahead?
This leads us to a bitter contradiction – on the one hand, it is plain to see the intuitive moral argument in favour of the right to the city, and on the other, formalizing this right is legally, politically and economically unachievable. The migrants moving into cities looking for sustenance and willing to live in the difficult conditions of informal settlements cannot be expected to ‘afford’ their right to live in the city. In practice, they are effectively penalized for their poverty, and made to fight for their right to be in the city against those that have already benefited from the opportunities of urban life and ‘bought’ their right to remain in the city. This is a manifestation of the unsustainable inequality perpetuated through the neoliberal world order – one which enforces the justice of the ruling class. Perhaps, then, the problem of formalizing the right to the city is only a symptom of the unsustainability of the current politico-economic paradigm.
SOURCES:
[1] Perry, Franscesca (2016) ‘Right to the city: can this growing social movement win over city officials?’ The Guardian. Barcelona. April 2016.
[2] AFP. (2016). Nigeria: Slum residents in Lagos protest eviction in drive to clear shanties. AfricaNews. November 2016
[3] Waldron. Travis. (2016). Nobody Asked Rio’s Poor About The Olympics. So They Yelled Louder. Huffington Post. Oct 2016
[4] The concept of an explicit ‘collective right’ as articulated in the World Charter for Right to the City, Barcelona (2005)
[5] Lefebvre, H. (1968). Le droit a la ville ` . Paris: Anthropos via Purcell, M. (2014). Possible worlds: Henri Lefebvre and the right to the city. Journal of Urban Affairs, 36(1), 141-154.
[6] Mayer, M. (2009). The ‘Right to the City’in the context of shifting mottos of urban social movements. City, 13(2-3), 362-374.
[7] As argued by Ronald Dworkin (1997) in his essays on ‘Taking Rights Seriously’
[8] Shantistar Builders vs. Naryan Khimalal Totome and others (1990). Referenced by Bhan, Gautam (2016) ‘Evictions, the urban poor and the right to the city: Delhi’
[9] This change has been outlined in: Weinstein, L., & Ren, X. (2009). The changing right to the city: Urban renewal and housing rights in globalizing Shanghai and Mumbai. City & Community, 8(4), 407-432.
[10] Hem Raj vs. Commissioner of Police (1999). Referenced by Bhan, Gautam (2016) ‘Evictions, the urban poor and the right to the city: Delhi’
[11] D’Souza, D., Josson, P., Nair, M., & More, D. (2005). ‘Introduction’ to Bulldozing Rights: A Report on the Forced Evictions and Housing Policies for the Poor in Mumbai. Mumbai: Indian People’s Tribunal on Environment and Human Rights.
[12] Weinstein, L., & Ren, X. (2009). The changing right to the city: Urban renewal and housing rights in globalizing Shanghai and Mumbai. City & Community, 8(4), 407-432.
[13] Weinstein, L., & Ren, X. (2009). The changing right to the city: Urban renewal and housing rights in globalizing Shanghai and Mumbai. City & Community, 8(4), 407-432.
[14] National Sample Survey Organization. Key indicators of urban slums in India. National sample survey 69th round. July 2012-December 2012 [Internet]. New Delhi: Ministry of Statistics and Programme Implementation; 2013. Available from: Available from: http://mospi.nic.in/Mospi_New/upload/KI_SLUM_report69round_24dec13.pdf [cited 2015 Aug 19].
[15] Subbaraman, Ramnath & Murthy. Sharmila (2015). The right to water in the slums of Mumbai, India. Bull World Health Organ 93 (11) Nov 2015 <https://doi.org/10.2471/BLT.15.155473>
PHOTO CREDIT: Lubna Anantakrishan