Author: Manohar Samal, National Institute of Securities Markets, Mumbai.
Introduction
Cities form an essential part of social, economic and political transition and development in a country due to the intricate complexities involved in their functioning. Due to this, urban governance which is resilient and sustainable are indispensable to the entire process of developing and governing cities. However, in reality, Indian cities have become champions of oppression and systematic inequalities against the urban poor resulting in their despicable suffering and deprivation of basic rights that are necessary for basic survival. The physical and mental woes faced by the migrant workers after the outbreak of the coronavirus pandemic have shown the weak substratum on which Indian urban governance stands at the present moment (Bhagat, 2020). Furthermore, considering that Indian cities accommodate more than 10 million people (World Population Review, 2020), lackadaisical urban governance is inexcusable. Under such circumstances, it is important that governance in cities is rethought in a manner that will result in manifest preservation of basic human rights and increased equality amongst inhabitants. This article argues that embracing the right to the city under the Indian Constitution as a fundamental right can initiate the process towards sustainable urbanism in a manner which is inclusive and also, guarantees basic indispensable rights to its inhabitants.
Concept of Right to the City
The origin of the concept of right to the city can be traced to Henri Lefebvre’s book titled ‘Le Droit a La Ville’ (Lefebvre, 1968). However, formalisation of this concept under the international sphere was not seen up till the World Charter for the Right to the City and the Habitat III Policy Papers. The ideal definition of this right has been laid down in the Habitat III Policy Paper No. 1 and has been given below:
“[T]he 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. The right to the city further implies responsibilities on governments and people to claim, defend, and promote this right.”
On perusal of the concomitants of the right to the city as laid down in the Habitat III Policy Paper No. 1, it can be deduced that the concept of this right embraces the balance between basic human rights and urban governance along with special emphasis laid upon “inclusiveness” in cities which seems to still be missing in Indian cities. Currently, there are only three countries which have successfully incorporated the right to the city within their domestic legal framework by either introducing it in the Constitution or enacting a statutory legislation in its respect and these countries are Brazil, Canada and France (Kothari and Chaudhry, 2015).
It is trite that urban local bodies (referred to as Municipalities or Municipal Corporation in India) carry out most of the urban governance related functions. Thus, in order to understand the contours of the right to the city in India, a reference to the Twelfth Schedule to the Indian Constitution will have to be made. This is mainly because the Twelfth Schedule lays down the powers, duties, responsibilities and functions of urban local bodies in India. On perusal of the same, it can be found that various concomitants of the right to the city have also been envisaged under the Twelfth Schedule and this is why the elements of right to the city in the Indian context would include adequate housing, access to basic urban services such as water, electricity, sanitation and preservation of health. Few other relevant elements in the Indian context which the State Government would be empowered to provide include employment opportunities and access to basic urban infrastructure such as public transport. All of these elements are quintessentials of the right and without even one of them, the effective realisation of right to the city would not bear fruitful results.
Right to the City Under the Indian Constitution
The scheme of the Indian Constitution is extremely wide and in fact, it is also the longest Constitution in the world (Bhattacharya, 2020). Under the Indian legal system, human rights can only be included or added by way of affirmation as a fundamental right under Part III of the Indian Constitution since Part III of the Indian Constitution is the formalised conferment of an individual’s natural rights. Thus, active affirmation of right to the city in India would have to be done by way of including it as a fundamental right. Judicial activism in India has paved the way for including essential human rights under the ambit of fundamental rights and evidence of this can be traced to Article 21, which is the heart of the Constitution. This is mainly because even though Article 21 in its written form only protects the right to life and personal liberty, the Supreme Court of India has expanded its scope in spirit to encompass all the rights which are inherent rights of human beings and are essential for their complete and unhindered development (Maneka Gandhi v. Union of India). In fact, few of the elements of the right to the city already exist as rights under Article 21 of the Indian Constitution and these include the right to health (C.E.S.C. Ltd. v. Subash Chandra Bose), the right to live with human dignity (Francis Coralie Mullin v. The Administration), the right to shelter (Chameli Singh v. State of U.P.) and the right to livelihood (Olga Tellis v. Bombay Municipal Corporation).
The idea that traces of the right to the city can be found in the Indian Constitution is not a newfound phenomenon. Rather, the Delhi High Court has even clearly affirmed that the right to the city does indeed flow out of Article 21 of the Indian Constitution while adjudicating upon a case related to illegal razing and destruction of the residential premises of the informal settlers in Delhi by the Municipal Corporation (Ajay Maken v. Union of India). However, the issue which exists here is that the Delhi High Court is a jurisdictional Court and thus, High Courts of other States are not bound to follow this judgment since it only holds “persuasive value” and are at liberty to hold a different opinion (Raiz, 2018). Hence, it is extremely pertinent that this issue is taken up before the Supreme Court of India in the form of a public interest litigation in order to ensure that the right to the city becomes a valid right under the Indian Constitution for the benefit of the suffering urban poor in Indian cities.
Conclusion
It is manifestly clear from the discussions held above that the right to the city does have a legal leg to stand under the Indian Constitution due to the existence of its concomitants from various judgments of the Supreme Court. If the right to the city is constructively affirmed as a fundamental right flowing out of the Indian Constitution by the Supreme Court, similar to the approach taken by the Delhi High Court, it is fully capable of leading to active legislation and policy making in cities. This would ultimately result in the improvement of urban governance which will then be carried out in a more inclusive manner, keeping in mind the basic urban and human rights of its inhabitants and contributing to the bigger picture of sustainable cities in India.
References
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