THE FRIGHTFUL dimensions of urban slum and squatter colonies are one of the most perplexing problems of contemporary public policy. The official status quo on this issue is presently defined by the Supreme Court Judgment in Olga Tellis v. Bombay Municipal Corporation. In this case the court voiced its concern over a multiplicity of moral issues, and sought to impose some sort of balance between conflicting ethical claims. In doing so, it had recourse, implicitly or explicitly, to a variety of ethical arguments.

“Slums”, “squatters”, “ghettos”, “shanty-towns”; each of these words primarily arouse a sentiment of repugnance conditioned by our reactions to the degraded physical conditions prevailing in the decrepit settlements of the urban poor. For instance, “slum” has been defined as follows:

A street or area which is in an unsanitary, dirty, dilapidated, and neglected condition, inhabited by the poorest and most thriftless of the population, and usually greatly overcrowded; a low dirty court, back alley...the slums, area in a town or city covered with squalid housing of the poorest kind.

Even the following definition of "slum" given by the United Nations carries similar connotations:

[A] building, group of buildings, or area characterized by overcrowding, deterioration, unsanitary conditions or absence of facilities or amenities which, because of these conditions or any of them, endanger the health, safety or morals of the inhabitants of the community.

A consequence of this attitude of revulsion is that there has been great enthusiasm for slum clearance, and other haphazard attempts to tackle particular evils, with little or no attention being paid to the forces that determine the development of cities. In the process, many of the policies intended to combat particular evils have, (i) actually made them worse, or, perhaps more dangerous; and (ii) increasingly placed power of direct control by the authority over the private life of the individual without in any way addressing or improving the ills they set out to address.

It is these powers that the Bombay Municipal Corporation sought to defend in Olga Tellis. It observed :

[N]o person has any legal right to encroach upon or to construct any structure on a foot path, public street, or any other place over which the public has right of way.

Numerous hazards of health and safety arise if action is not taken to remove such encroachments. Since, no civic amenities can be provided on the pavements, the pavement dwellers use pavements or adjoining streets for easing themselves. Apart from this, some of the pavement dwellers indulge in anti-social acts like chain-snatching, illicit distillation of liquor and prostitution. The lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities…

Throughout the arguments, the central question regarding the causes of the existence of these slum and squatter settlements is entirely neglected. Further, the observations relating to heightened levels of crime and immorality are not supported by any empirical studies. And, what is more, the sheer futility of demolitions and slum clearance is ignored.

By and large, the five-member Bench rejected the ratio of the Maharashtra Government's arguments, and attempted to go much deeper into the issue. Nonetheless, despite their intentions, their ideas could not escape the mould that language had forged. Ethical ambiguity and conflict characterise much of the judgment. While the Court at one point accepts that “the charge made by the State Government in its affidavit that slum and pavement dwellers exhibit especial criminal tendencies is unfounded,” Chandrachud, C.J., nevertheless chose to preface the judgment with an image that emphasises only notions of physical and moral degradation that slums represent in the general conception.

Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters come of age, bathe under the nosy gaze of passers-by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each other's hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say: "Who doesn't commit crimes in this city?” It is these men and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation. They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood.

Despite a flood of humanitarian rhetoric, the substantive part of the judgment reaffirms that the executive's "power of eviction and demolition... cannot be regarded as unreasonable, unfair or unjust." The Court concedes that "eviction from pavements and slums will lead to deprivation of... livelihood and consequently to the deprivation of life", but regards the situation with a sort of static helplessness that makes no effort to affix responsibility.

Two conclusions emerge from this discussion: one, that the right to life which is conferred by Article 21 includes the right to livelihood and two, that it is established that, if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty.

At a single stroke, a vast sea of humanity is relegated, by the very fact of its existence, into the ranks of chronic law breakers. They have no ‘legal’ right to whatever shelter they may have secured. Those who came before, when the pressure on land was less, and who succeeded in legitimising their titles (whether they were poor or rich migrants) now collaborate against the late comers, seeking to keep these 'interlopers' out.

In Olga Tellis, of course, the Supreme Court did give the pavement dwellers a temporary and qualified reprieve, but left the possibility of demolition and extradition as a permanent sword of Daemocles hanging over their heads.

No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavement by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and re-passing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser.

Since then, executive bodies, both in Bombay and metropolii elsewhere, have repeatedly found fit to exercise their authority, now ratified by the Court, in randomly demolishing large and small squatter settlements.

The judgment of the Supreme Court is obviously characterised by a great deal of ethical conflict. It is an uncomfortable and unrealistic balance of two counterpoised sentiments: the slum and pavement dwellers are regarded, on the one hand, as a nuisance, and, on the other, recognised simultaneously as objects of pity.

Such a view is absolutely incorrect, and fails completely to, (i) reflect the productive role of slum and squatter settlements, and of their populations, in urban development; and (ii) adequately address the question of the causes that have contributed to the development of these ‘urban fungi’.

The pattern of reasoning implicit in the Supreme Court Judgment in Olga Tellis bears striking resemblance to a model articulated by Hardin. The metaphor of a lifeboat is used by him to argue that the time may have come to refuse aid in the form of food to those needy countries which do not accept the responsibility for limiting their population growth, and to drastically curtail migration from poor to rich nations.

In his metaphor, each rich nation amounts to a lifeboat full of comparatively rich people. The poor of the world are in other, much more crowded lifeboats. Crowding, here, does not refer to a space/person ratio, but rather to a resources/person ratio. Continuously, in this model, the poor "fall out" of their lifeboats and swim for a while in the water outside, hoping to be admitted to a rich lifeboat, or in some other way to benefit from the "goodies" on board. The central problem of the “ethics of a lifeboat” is “what should the passengers on a rich lifeboat do?”

“The ethical problem,” Hardin observes, “is the same for all”. He thus traces out his dilemma in a single representative boat:

Here we sit, say 50 people in a lifeboat. To be generous, let us assume our boat has a capacity of 10 more, making 60.... The fifty of us in the lifeboat see hundred others swimming in the water outside, asking for admission to the boat, or for handouts. How shall we respond to their calls?

Hardin conceives of three possible responses, and three corresponding scenarios:

One. We may be tempted to try and live by the Christian ideal of being “our brother’s keeper,” or by the Marxian ideal of “from each according to his abilities, to each according to his needs.” Since the needs of all are the same we take all the needy into our boat, mating a total of 150 in a boat with a capacity of 60. The boat is swamped, and everyone drowns. Complete justice, complete catastrophe.

Two. Since the boat has an unused excess capacity of 10, we admit just 10 more to it. This has the disadvantage of getting rid of the safety factor, for which action we will sooner or later pay dearly. Moreover, which 10 do we let in? “First come first served?” The best 10? How do we discriminate? And what do we do to the 90 who are excluded?

Three. Admit no more to the boat and preserve the small safety factor. Survival of the people in the lifeboat is then possible (though we shall have to be on our guard against boarding parties).

The lifeboat model, we can see, has immense logical force. In framing the question as one of survival, and arguing purely from necessity, Hardin succeeds in ridding our approach to the problem of aid and distress immigration of the sentimentality that usually accompanies it.

By contrast the idealist’s position — that the rich ought to help the needy, that basic needs of all must be satisfied well before any other ethical criterion of distributive justice is brought into play, or that it is morally wrong not to prevent suffering when it is possible to do so — appear muddle-headed, sentimental, based on an inadequate understanding of reality and, for the policy maker, thoroughly impractical.

Hardin’s model of the lifeboat lends itself perfectly to the ratio underlying Olga Tellis. We may, in applying the model, conceive of the rural areas as the poorer ‘overcrowded’ lifeboats, and the metropolii as the land of promise, the rich lifeboats which the poor are trying to swim onto. This corresponds to the Supreme Court’s perception of the problem of “the migration of people from the rural to the urban areas” as “being a reflection of the colossal poverty existing in the rural areas”. This is a viewpoint that has wide currency among legal, administrative and town planning experts.

The Supreme Court acknowledges that, (i) this mass of the abjectly poor has a “right to life” under article 21 of the Constitution, and that such right is meaningless without a right to livelihood; and (ii) slum and pavement dwellers choose locations in the vicinity of their place of work.

The court, nonetheless, saw fit to ratify the executive’s power of demolition and eviction. The reasons variously given were that such encroachments for private use “frustrate the very object” of the public purpose for which they are earmarked.

In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements.

Evidently, the flood of migrants that crowd the slums and pavements of the metropolii are seen as a burden upon the urban rubric, and a strain on the “carrying capacity” of the metropolitan “lifeboat”. Like Hardin, the Supreme Court recognises the claims of the less fortunate to our sympathy, but not aid.

Once again, as with Hardin, the logic is almost irrefutable; clearly, if the alternatives are urban chaos, or the eviction of a segment, no doubt unfortunate, of the burgeoning urban population, the latter must be the preferred course.

However, even if we admit, be it theoretically, the possibility of effectively evicting these squatter populations from the urban lifeboats, there are strong arguments against the morality of such action. Crucially, the lifeboat ethic, both as articulated by Hardin, and as discovered in Olga Tellis, is illegitimate, despite its apparent reasonableness. This is primarily because the “lifeboat” analogy fails to reflect the reality of the relationships between rich and poor nations (in Hardin’s model), even as it fails to reflect the real nature of the relationship between the urban and rural sectors.

Most significantly, the lifeboat analogy is static. It takes the poverty of certain nations as given, even as it accepts the wealth of others. Similarly, in Olga Tellis, the poverty of rural India is accepted as a fact, and the wealth of the metropolii is self-evident. The static conception, however, is unfaithful to the dynamic reality.

In the international context, advocates of the dependency theory have demonstrated that the rapid economic growth of the First World could not have occurred without draining out the resources of the Third World. In the dual economics of today’s developing nations, the metropolitan centres could not have prospered without the untrammelled exploitation of resources in the rural hinterland to its lasting detriment. The industries of the urban conglomeration have grown at the expense of the rural sector. They have, further, constantly encroached upon rural resources and appropriated or degraded them in the process.

The Lifeboat Ethic does not acknowledge the dynamic interface between the metropolii and the hinterland, or reflect the manner in which prosperity of the former contributes to and causes (at least partially) the poverty of the latter. These factors could be accommodated in another, somewhat similar, albeit crude model. Since we are at sea, it may be called a ‘raft model’. Once again, there are several rafts, some crowded and others comfortable (rich). Crucially, however, all these rafts are constantly changing, with people on each raft packing out pieces of flotsam from the sea and tying them onto their rafts. Thus a raft can grow. On the other hand, pieces can also be detached from a raft, and, consequently, a raft could just as well shrink.

Now, by virtue of their larger size and strength, the richer, larger rafts often raid and plunder the smaller, crowded rafts, progressively enlarging themselves through this process. The larger rafts may, of course, accommodate an occasional ‘refugee’, who swims from the poorer rafts, but this model assumes that they displace many more than they accommodate.

It is contended that such a model would more accurately reflect the relationship between the metropolii and the rural hinterland. It also helps highlight the moral issues involved in this relationship, and in doing so indicates the possibilities of a solution which would not ‘cancel itself out’ as did the orders of the Supreme Court in Olga Tellis.

Once we acknowledge the responsibility, be it partial, of the metropolii for the progressive pauperisation of the countryside, the basic legal principle of compensation for damages can be applied.

Two measures to implement this principle suggest themselves:

(i) The welfare and housing, at least of migrants to the urban areas, must be made the responsibility not of government, but of the private sector employers who, (a) lure workers to the urban areas; and (b) are indirectly responsible for their displacement in the first place, since they are collectively responsible for the decline in the quality of the rural habitat.

(ii) Public policy must increasingly divert funds from the industrial/urban sector to the rural sector to compensate for the damage done by the former to the latter. The volume of such funds could be determined on a cost-benefit analysis of various transactions between the two sectors.

Evidently, these two measures need to be fleshed out, and eventual legislation would have to give due attention to detail. However, recognition of the rural/urban dynamic, of the ethical problem arising out of it, and of the relevance of the principle of compensation in this sphere, would be important steps in this direction.

Ajai Sahni