The Intent to Reside: Spatial Illegality and Social Security in Urban India

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The Intent to Reside: Spatial Illegality and Social Security in Urban India
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  Historically, the Indian welfare state has largely been ru-rally imagined. Programmes of social security in India—ranging from enabling and rights-based entitlements to basic transfers seeking to prevent destitution—have been and remain focused on rural poverty and vulner-ability, with budget allocations that re 󿬂 ect such priori-ties. 1  However, while still fragmented, a framework for social security—from principles and entitlements to policies and programmes—is beginning to take shape in urban areas. T e list of its possible components is substantial: from the proposed urban livelihood mission to the right to education; social security for unorganized sector workers to entitlements to housing; expansion of basic environmental services to universal health insur-ance; as well as the initiation of cash and direct transfer programmes. Together, this range of urban interventions could potentially see the emergence, for the 󿬁 rst time, of an integrated urban social safety net that de 󿬁 nes rights and entitlements for urban residents. How should inclusive planning in Indian cities engage  with this emerging framework? In this chapter, we focus on one critical anxiety in conceiving and implementing urban social security: the question of residence. Smita Srinivas has usefully argued that social security programmes can be seen as work (labour status), workplace (employer-related), and place-based (territory and citizenship) in their conception and implementation (see Srinivas 2010: 457). T e categories overlap often—‘national insurance schemes based on citizenship are place-based even if, at times, administered through workplaces’ 2 —and programmes often have more than one kind of bene 󿬁 t.  Yet the di ff  erentiation is an important one. T e category of ‘place-based entitlements’ allows us to reach the central preoccupations of this chapter: How do and should urban social security programmes determine who is an urban resident? Why should such a distinction be material to the conception and implementation of social security programmes? In the Indian context, this preoccupation with residence takes a particular form. Unlike in many other global cities, the fault lines of exclusion in India are not yet signi 󿬁 cantly drawn on the lines of national citizenship— 5 The Intent to Reside Spatial Illegality, Inclusive Planning, and Urban Social Security Gautam Bhan, Amlanjyoti Goswami, and Aromar Revi   !" $%&%'   ()   %*'   +,-&.   /((,    ,'/(,%  0123 the urban poor are, for the most part, formal citizens of the Indian nation state. T e Constitution of India does guarantee the Fundamental Right of its citizens to ‘reside and settle in any part of the territory of India’ [Article 19(1) (e)] as well as ‘move freely throughout the territory of India’ [Article 19(1) (d)]. T ere is case law from the Supreme Court of India that a  ffi  rms the Fundamental Right to shelter, as part of the right to life, for every citizen of India . 3  Yet, in spite of such a  ffi  rmations, adequate shelter, including ‘adequate living space and decent structures, clean and decent surroundings, su ffi  cient light, pure air and water, electricity, sanitation and other civic amenities’ 4  remains an unful 󿬁 lled dream.  T e anxiety that arises from such a predicament (that is, rights on paper but not on the ground) is then of a dif-ferent kind. It arises from a common urban condition in cities of the South: T e majority of urban residents ‘settle’ the city through some form of spatial ‘illegality’, even as right to shelter is acknowledged. T is incongruity 󿬁 nds consequential resonance in questions of social security.  While debates on social security have now long grappled  with questions of economic informality and unorganized  work, questions of spatial illegality have received relative-ly less attention. Yet spatial illegality has the potential to confound the very structure and delivery of place-based entitlements. Can residents in ‘illegal slums’ be given access to urban services, housing, health, and education  while they live on occupied public or private land? What happens to these bene 󿬁 ts and infrastructure in case of eviction? Equally, can illegal and quasi-legal peri-urban developments of the wealthier elite be provided trunk infrastructure, though they are illegal conversions of agricultural land? Can renters even in legal colonies—let alone those in ‘illegal’ ones—claim to be ‘residents’ for the purpose of accessing social security bene 󿬁 ts?  T is chapter brie 󿬂 y explores the de jure and de facto impact of spatial illegality on access to rights and entitle-ments by urban residents in Indian cities and does so focusing on the question of access to such entitlements by residents of ‘slums’. It is structured in four parts. T e 󿬁 rst reviews debates on how to consider and de 󿬁 ne spatial informality and illegality and presents a general-ized set of empirics of illegal inhabitation in Indian cit-ies. T e second, then, looks at a range of social security programmes for health, education, housing, and access to basic services. Within each, it shows the impacts that spatial illegality has in determining and limiting access to rights and entitlements for particular residents. T rough this analysis, it argues that even within increasingly universally imagined programmes, spatial illegality has the potential of undoing a viable social safety net. T e third section then suggests a possible framework on how to overcome such limitations: shifting the foundation of place-based entitlements from proof of a certain term or tenure of residence to an Intent to Reside (ITR) approach based on universalized entitlements. In the concluding section, it outlines key challenges that such a shift will inevitably face in conception as well as implementation. ON SPATIAL ILLEGALITY   Writing on cities in the Global South is replete with multiple accounts of ‘informality’, which, often errone-ously, is interchangeably used with ‘illegality’. T ere are two distinct strands within these debates. T e 󿬁 rst is economic informality that describes conditions of work, enterprise, or worker status (where ‘illegality’ is rarely used and means something literally criminal such as drug tra  ffi  cking). T e second is informality/illegality in the inhabitation and production of space, particularly within housing. It is the latter that is the focus of this chapter.  T e premise of these debates lies in the realities of how residents inhabit cities in the Global South. A signi 󿬁 cant proportion of residents—in many cases, the majority—do so not within the ‘formal’ and ‘legal’ system, but through a range of practices ranging from squatting and occupation to violations of building and planning norms within individual structures, or to the conversion of rural land into urban residential developments. It is these residents and their urban practices that the terms ‘informality’ and the idea of the ‘informal/illegal settlement’ seek to capture. Studies of land and housing practices in Latin America in the 1970s and the 1980s were perhaps the 󿬁 rst to understand urban informality through actually exist-ing practices of the production and habitation of urban space (Castells 1983, 1989; Perlman 1976). T ese stud-ies extended and challenged the economic concept of the ‘informal sector’, breaking with ideas of marginality and dual economies to speak not just spatially but also of ‘populist mobilizations, state power and economic dependency’ (Roy and AlSayyad 2004: 2). Since these studies, the ‘informal’ in the city has been thought about in multiple ways and in di ff  erent spaces: as a practice/  %*'   4.%'.%   %(   ,'$45'  !6 type of labour (and perhaps even labourer), a mode of governance and the production of urban space, as a type of urban settlement or housing, a type of built environ-ment or building practice, etc. 5  Empirical work across cities of the South shows that informal/illegal practices of inhabitation are not limited to the poor but, in fact, ubiquitous to poor and elite residents alike, in constantly shifting terrains of how urban space is settled and produced (see, among others, Holston 2009; Bayat 2001; Bhan [forthcoming] 2013).  What separates these ‘degrees of illegality’ (Yiftachel and  Yacobi 2003) practiced by the elite and the poor are dif-ferent forms and degrees of informality/illegality and the di ff  erentiated consequences that result from such prac-tices. Let us illustrate this empirically, drawing upon the  work of one the authors on Delhi (Bhan and Shivanand 2013; Bhan 2009). Table 5.1 describes settlement typolo-gies for Delhi using data from 2000. What is important to note in reading it is that only 24.7 per cent of the city’s residents lived in what are called ‘planned colonies’. What does it mean for three-fourth of city residents to live in settlements that are ‘unplanned’? T  ABLE  5.1  Settlements in DelhiType of Settlement Est. Percentage Population of Total in 2000 Population (100,000s) of City  JJ Clusters 20.72 14.8Slum Designated Areas 26.64 19.1Unauthorized Colonies 7.4 5.3 JJ Resettlement Colonies 17.76 12.7Rural Villages 7.4 5.3Regularized-Unauthorized Colonies 17.76 12.7Urban Villages 8.88 6.4Planned Colonies 33.08 23.7Total 139.64 100 Source  : Statement 14.4 of the Delhi Economic Survey 2008–09 (Government of Delhi 2009).  Planned colonies are those that are built on plots marked in the development area of the Master Plan, in concordance with the use allocated to that plot in the Master Plan or the Zonal Plan (if it exists), and that are presumably laid out according to norms and standards de 󿬁 ned in the Master Plan for design, infrastructure, and amenities. ‘Unauthorised Colonies’ and ‘JJ Clusters’ in Delhi fall short of the de 󿬁 nition but do so in di ff  erent ways. ‘Unauthorised Colonies’ are settlements built typically on rural land or on land not noti 󿬁 ed for urban, residen-tial use. Yet home-buyers in these colonies typically have formal, documented agreements—ranging from ‘Power of Attorney’ (recently held by the Supreme Court to be no longer valid) to ‘Agreements to Sell’—as proof of le-gally defensible purchase agreements. T e owners of the land (usually farmers) indeed had the right to sell what is undisputedly their property—the ‘unauthorized’ aspect of this transaction is that they were not allowed to sell the land for urban, residential use to non-farmers. In the Master Plan, therefore, these areas are either marked ‘rural’ or ‘urbanizable’. Less often, these are in the plan’s urban development area but are not zoned for ‘residential’ use. T ese colonies thus remain absent from the Master Plan even after the land is built up, cut into plots, sold, and occupied. T is has serious consequences for residents; primary among them is that the property ‘titles’ are not recognized by the state because, according to the Master Plan, these settlements cannot exist. T is lack of recogni-tion has historically implied, to take just two examples, the inability to raise mortgage and housing 󿬁 nance or to be eligible, as a settlement, for municipal services. In other words, to begin using the vocabulary that we shall de 󿬁 ne in the following chapter, the titles of these homes are  formal but they are not legal  . Such a classi 󿬁 cation thus separates the formality of the transaction from the legal-ity of the resulting ‘title’. JJ Clusters, on the other hand, also at times involve some payment for a plot but it rarely takes the form of the  written, formal ‘agreements to sell’ on notarized stamp paper that residents of ‘unauthorized colonies’ brandish to show the legitimacy of their residence. T e key di ff  er-ence is that JJ Clusters exist on either public or private land that has a clear owner who has not sold the land to the residents of the cluster. In other words, the sale is not by the legal owner and, therefore, is void and fraudulent, regardless of the end use of the land. T ese residents have either occupied this land or paid someone who has done so before them. T ere can be no claim to ownership via property title at all in a JJ Cluster. For residents of JJ Clusters, their ‘titles’ are neither formal nor legal  . Yet there can be security of tenure in many such clusters, based on political protection, government inaction, and also (and  we will return to this later) through the slow acquisition  !7 $%&%'   ()   %*'   +,-&.   /((,    ,'/(,%  0123 of services as well as identity papers such as ration cards for the public distribution system that creates a de facto if not de jure sense of security. Both JJ Clusters and Unauthorized Colonies can be ‘regularized’. In other words, they can be given formal and legal titles post facto, often decades after they are built. T is ‘regularization’ or legitimization of settlement and use can take many forms: in situ upgradation, resettlement, or a mixture of both. Typically, it is the 󿬁 rst for the Unauthorised Colonies and the second or third for the JJ Clusters.  T ere are further nuances as we become more speci 󿬁 c about what we mean by ‘illegality’. In the cases above, the settlement (what is being called a ‘colony’ or a ‘cluster’) is illegal per se or because of end use. Yet even within legal colonies—where, by our de 󿬁 nition, owners have titles that can be registered with the state—individual condi-tions of residence can yet be illegal. In a ‘resettlement colony’, for example, residents are given plots with for-mal and legal documentation after being evicted from JJ Clusters. T ey are thus legal inhabitants in a legal settle-ment. Yet their property rights could be restricted. T ey are imagined to be eternal owner-occupiers and may not sell, transfer, or rent their properties, ‘legally’. Renters in resettlement colonies (a key constituency of urban social security programmes and by all accounts anywhere be-tween 30 and 60 per cent of residents in such colonies) cannot thus be legal residents. T is again is not true in category of the ‘Slum Designated Area’. T ese areas—often called ‘noti 󿬁 ed slums’—have a quasi-legal recogni-tion and protection though being declares as slums under the Slum Areas Act 1956 that protects their property rights to an extent.  T ese examples of various types of ‘settlements’ de 󿬁 ned by various nomenclatures often befuddle the binary imagination of ‘legal’ and ‘illegal’. T e background of the constitutionally a  ffi  rmed right to shelter is therefore  juxtaposed with the idea of ‘encroachment’, especially on public lands, which is deemed illegal. How do we understand ‘spatial illegality’ within such complexity? In this chapter, we try to use the terms ‘formal’, ‘legal’, ‘informal’, and ‘illegal’ very speci 󿬁 cally. We limit our use of ‘legal’ to only refer to settlements that are recognized by the Master Plan to the extent that the owners of the housing units possess some kind of recognized title or ownership that can be registered with local authorities and is recognized by the government. To describe documented transactions of sale and purchase of property or built housing whether or not the resultant titles are legally recognized, we use the term ‘formal’. Spatial illegality then refers to all forms of inhabitation and the production of space by urban residents that do not confer upon them a de jure property right.  T ough the example of Delhi has been used above, these degrees and forms of illegality are common to all Indian cities, though in di ff  erent proportions. T e Slum Data of the Census 2011 (Registrar General of India 2011) o ff  ers a glimpse into the national level urban empirics for slums in particular. T e census measured ‘noti 󿬁 ed’, ‘recognized’, and ‘identi 󿬁 ed’ slums. T e 󿬁 rst category represents those legally noti 󿬁 ed under relevant ‘Slum Acts’ in di ff  erent states. T e second are those that an authority of the state recognizes formally as a ‘slum’ in some form, either within a policy or through a sur-vey. T e third category is those that the census counts as slums but that lack either noti 󿬁 cation or even a ‘recogni-tion’ by a state authority. T e Census 2011 counted slum clusters thus: 34 per cent were noti 󿬁 ed, 29 per cent rec-ognized, and 37 per cent identi 󿬁 ed. T erefore, the larg-est category across all cities and towns in India remains slums that are neither noti 󿬁 ed nor recognized. Further, as has been argued, these statistics possibly represent a signi 󿬁 cant undercounting of such slums (Bhan and Jana 2013) so this number and proportion may itself be an underestimate. SOCIAL SECURITY AND SPATIAL ILLEGALITY Spatial illegality will limit or prevent access to social security bene 󿬁 ts if the eligibility criteria de 󿬁 ning ‘bene 󿬁 -ciaries’ of any programme are, at least in part, determined by the legality or otherwise of their residence in the city. If, for example, basic environmental services like water and sanitation cannot be provided by public agencies in  JJ Clusters and Unauthorised Colonies because they are considered to be illegal settlements by the Master Plan, then spatial illegality becomes a key factor in preventing access to such services. In this section, we look at several di ff  erent facets of  what should compose basic social security for urban residents—tenure and housing; minimum access to water and environmental services; subsidized food through the public distribution system (PDS); decent work; health  %*'   4.%'.%   %(   ,'$45'  !8 and education—and assess how spatial illegality a  ff  ects eligibility and access to entitlements within each. We take, given limitations of space, three ways in which spatial illegality excludes residents: (a) de jure exclusions such as in the case of water; (b) the di ffi  culty in existing on paper that results in de facto exclusions; and (c) cycles of evictions and resettlement.  Access to Water Let us take water as an example. T e Supreme Court, as with shelter, has a  ffi  rmed the fundamental right of ‘enjoyment of pollution free water [and air] for full enjoy-ment of life’ 6 and further added that ‘the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide drinking water to its citizens’. 7  How does access to this Fundamental Right then play out on the ground?  T e Delhi Jal Board invites applications for water connections from ‘unauthorized/Regularised colonies,  Approved colonies, Resettlement colonies/Urban Villages, Rural Villages’ 8 —thereby implicitly excluding JJ Clusters. T e Bombay Municipal Corporation Rules have a simi-lar exclusion, but one that is, importantly, time bound. Under a General Resolution issued by the Government of Maharashtra in 1996 and the Water Supply Rules issued by BMC in 2002, households that cannot provide proof of residence prior to 1 January 1995 have no entitlements to municipal water provision. A recent judicial challenge to this exclusion in the Bombay High Court has resulted only in its reinforcement. Denying the petition 󿬁 led by the Pani Haq Samiti, the Bombay High Court articu-lated a common fear underlying the denial of water to slum residents—that services would make residents feel entitled to tenure security: ‘you would not want to move away from that place if you have water’. 9  Legality of tenure in urban India can thus determine access to services, even as it does so di ff  erently across cities, states, and sectors. Recently, however, a move to delink tenure from service provision has been coming into place. However, as the Pani Haq Samiti case seems to indicate, its reach may remain limited. Under the Basic Services to the Urban Poor (BSUP) component of the Jawaharlal Nehru Nation Urban Renewal Mission (JNNURM), it is recognized that the absence of legal tenure prevents the provision of locally provided urban services like access to water, sanitation, and solid-waste management. T e Ministry of Urban Development implicitly acknowledges this: ‘Slums, not currently noti- 󿬁 ed, must be enlisted by the local body through a formal process so that these become eligible for provision of basic services’ (Ministry of Urban Development n.d.: 5). T e BSUP sets out explicitly to change this. It seeks instead: to ensure universal and equitable access to basic services for all urban dwellers, including slum residents who may be living in non-noti   󿬁  ed, irregular or illegal settlements,  by connecting these areas to municipal services, that is, water supply, toilets, waste water disposal, solid waste disposal, roads, power, etc. ([italics added] Ministry of Urban Development n.d.: 5–6) T is process, ideally, the ministry argues, should work through granting of tenure and titles. In other words, ‘slums’ must be given some form of legal tenure and then services can follow. However, critically, ‘since the process of granting land tenure will take time, noti 󿬁 cation can help to include currently excluded/non-noti 󿬁 ed settle-ments for provision of services’. Yet, in spite of such an inclusive formulation, what remains of concern is that it acknowledges the distinc-tion between what could be termed legitimate access to services for noti 󿬁 ed slums and its counter, namely, illegitimate access for non-noti 󿬁 ed ones even as it en-courages more widespread and easier noti 󿬁 cation. Rather than arguing that all urban residents, regardless of the legal tenure of their settlement  , should have access to water and basic environmental services as a right and entitle-ment (in conformity to the principle enshrined by the Supreme Court) the BSUP imagines a degree of ‘built-in legitimacy’ by underlining a process by which slums are 󿬁 rst ‘noti 󿬁 ed’ by the appropriate governmental authority after which they become eligible for services. What this leaves unsaid, therefore, is that until such ‘noti 󿬁 cation’, large numbers of residents remain in non-noti 󿬁 ed JJ Clusters. T e Census 2011 data are a timely reminder of the fact that the category of ‘identi 󿬁 ed’ slums that have no noti 󿬁 cation or recognition by a public authority are 37 per   cent of all slums in the country, and are the largest of the three categories of slums.  T is gap will hopefully reduce over time. Yet there is no way of knowing how long this time frame is. Further, if JNNURM—a mission with a 󿬁 xed time frame tied to a particular elected government—ceases to function, then no legal and binding principle has been
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