A review of the Slum Areas of Maharashtra (Improvement, Clearance and Redevelopment ) (Second Amendment) Act, 2001
In June 1996, nations from all over the world assembled at Istanbul and committed themselves to the improvement of habitats, especially for the homeless. The Habitat-II agenda clearly recognised that forced evictions are a gross violation of human rights. The government of India as part of its own action plan sequential to the Habitat-II is in the process of drafting a National Slum Policy (Draft issued in April 1999). One would therefore expect that Amendment to the Maharashtra Slum Areas Act, 1971, to be in keeping with the framework of the national Housing Policy (August 1994) and Draft national Slum Policy. The new Act however seems to promulgate its own analysis of the issue of slums and concerns of slum-dwellers in the urban areas of Maharashtra.
An understanding of the key features of this ordinance requires a comparison with The Principal Act, i.e. the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971, and The Ordinance brought out as the first Amendment to the Act in May 2001.
Some of the key features are:
(i) the object of the principal Act was to make better provisions for the improvement and clearance of slum areas in the state, to stop further proliferation of illegal and unathorised structures, and to protect the occupiers from eviction. It was oriented more towards tolerance and improvement. The First Amendment was therefore brought out with an object of ‘effectively providing for protection of slum dwellers, their relocation and rehabilitation.’ The new Ordinance has an additional objective - 'to ensure immediate and smooth implementation of law and to deal effectively with the ever increasing menace of unauthorized encroachments on Government lands.'
(ii) All people in uninterrupted occupation of slum dwellings on or prior to January 1, 1995, who hold a photopass (Identity card for slurndwellers) or documents equivalent to it, are considered to be ‘protected’ occupiers. They cannot be evicted from their dwellings unless their eviction is deemed necessary in the larger public interest, and this eviction is subject to their relocation and rehabilitation in accordance with schemes of the State Government
(iii) Non-compliance with the schemes and terms of relocation and rehabilitation is equivalent to forfeiting of a claim for rehabilitation.
(iv) Any unauthorized or illegal structure constructed after January 1, 1995 is liable to be demolished with a show cause notice of 24 hours. (The First Amendment allows a period of up to 10 days to respond to the notice.)
(v) The demolition of the unauthorized structures is the responsibility of the owner / occupier, and expenses for the same are to be recovered from the sale of the debris, and the owner / occupier, if a competent authority performs the act of demolition.
(vi) The construction of unauthorized structures, aiding / abetting such construction, and occupation of such structures with knowledge of their 'unauthorized' status, are deemed to be cognizable, non-bailable offences, liable to imprisonment and fine.
The authorities /officers who aid/ abet such construction, or who fail to demolish such structures as per outlined procedure, are also liable to similar punishment on conviction. (it is significant to note that the earlier Ordinance considered officials committed by both non-officials and officials as non-bailable and cognisable. The current amendment however excludes offences committed by non-officials from the cognizable and non-bailable category.)
Reading between the lines of these key features, one can discern a few unstated assumptions of the new Act The Slam Act of 1971 was the forerunner of a policy to 'tolerate* slums in the urban milieu and to undertake basic improvements in their environment It was this Act which introduced the idea of cut-off dates as a criterion for tolerance, and which gradually became an electoral gimmick. The new amendment represents a shift in policy initiatives; its motto being 'Preventing new (as in post-1995) development of slums' and earlier slums to be either tolerated/relocated.'
The central issue addressed by the amendment is 'illegal / unauthorized occupation of government land’ - an act which seems to proliferate through the presence of slums, and which is creating obstacles in the ‘planned development’ of urban areas in Maharashtra.
This implies that: (i) Slums are a nuisance. (ii) Slums are created through a deliberate, flouting of law, i.e„ by not opting for legal housing.
(iii) The scale of the occupation of land is such that the government considers it a 'menace.' Hence, the need for speedy action on unauthorised occupiers and abettors to the development of slums.
Some of the ‘old’ assumptions of the 'new' amendment have been challenged for a long time. Several studies have established that the existence of slums is a reflection of the distortions in urban housing markets. The limited and expensive housing available through conventional means, locking of: rental, markets, and unavailability of land at affordable prices on the one hand, and the dichotomy of rural-urban development that concentrates resources and opportunities in urban areas on the other, contribute to this. The current Mumbai Metropolitan Regional Development Plan acknowledges that ‘ The private housing market especially leaves out the poor. The public sector supply is very limited. As a result, the shelter needs of 53% of the` poorer households are satisfied in the 'informal market every year. This is in the form of further densification of existing slums and growth of new slums.
Slums are thus the only viable housing alternative for the urban poor. The above observation is also borne out by several reports and statistics in different parts of the country. Hence the Draft National Slum Policy has adopted the following as its governing principle: ‘…slums are an integral part of urban areas. ..The Policy endorses-an upgrading and improvement approach in all slums. It does not advocate slum clearance except under strict guidelines set down for resettlement and rehabilitation in respect of slums located on untenable sites'
The approach of the new Maharashtra Slum Act is contradictory to the above position. Above all, it takes a myopic view of the slum issue, which ignores its multiple ‘people’ dimensions. The other assumption, with respect to the scale of the occupation of land, is also faulty. To cite an example, the gross area of Mumbai is around 43,000 hectare is. The population of Mumbai in the year 2000 was around 12 million, thus the number of dwelling units required was around 2.5 million. Using a widely accepted planning standard of 40 sq m (significantly, this had been amended partly in '91 to 22.2 sq m); the requirement of land for housing everyone in Mumbai would be around 10,000 hectares, around one-fourth of the land available. Secondly, government figures themselves acknowledge that a little over 25.25 sq km land is occupied by slums. In this context, the hoopla over 'encroachment’ by slum dwellers is little more than divergence from the real issues at stake.
Firstly, by viewing slums purely as a nuisance. The Act ignores them as a housing solution for some people. It places the onus on the people to either legally house themselves, or forfeit their right to live in urban areas without any acknowledgement of the failure of the State Government to facilitate legal' and affordable housing for the poor. The Act in effect denies the poor an open entry to cities in Maharashtra.
Secondly, in treating willful occupation of unauthorized housing as an offence, it converts 53 per cent of the population requiring new housing every year (BMRDA report, 1995) into criminals in Mumbai. If one were to compile the annual needs of the housing of the poor in urban areas across the State, this amounts to a blatant criminalization of the poor.
The criteria of January 1. 1995 as a cut off date for protection and relocation of hutments does not follow any reason. The cut-off date for protection of hutments has been progressively extended since 1976 to 1980, 1985, 1991 and then 1995 in each electoral year. When an ordinance passed six years later sticks to 1995 as a cut-off date, the scale of people who become unprotected and insecure is bound to be tremendous. Also, the pressure on the administrative machinery to check and correct post-dated offences will be ' huge.
The Act declares that its principal object is to explicitly 'protect, and if required, relocate and rehabilitate.’ It falls short on both these objects. It is silent on the issue of ownership of lands, thereby leading to the conclusion that the protection of January 1995 would cover only people on Government lands. The massive scale of exclusion is evident from the fact that in Mumbai itself, 60% people stay on lands that are privately owned or owned by various agencies of the Central Government. The Act also makes a mockery of the term 'rehabilitation.' Rehabilitation would be on the terms set out by the concerned authority with people having no choice in the matter. The financial bill attached to the Ordinance clarifies that expenses for rehabilitation are to be primarily defrayed from charges recovered from 'beneficiaries.' People are thus expected to pay for the 'favour' of a kind of rehabilitation in which they have no say.
The history of relocation and rehabilitation efforts in Mumbai especially, shows that these schemes a read hoc; create grave difficulties for the people, especially women, in rebuilding their lives; and that the poor suffer immense losses in the process. The terms of rehabilitation have been slightly better off when residents have organized themselves, and have had a say (TISS and TCS study, 1999). The current Ordinance, however, denies them this right to participate, a principle which contradicts' those outlined by the National Slum Policy.
Urban areas have always been viewed as pinnacles of modern, industrial development. Their planning has been tailor made to the needs of the architects of such development It is high time that the planning and legislative process accepts the contribution of the poor to the economic development of cities. Policies must be reoriented accordingly. The Maharashtra Slum Areas Act, 2001 is in contradiction to national policies in the sector that have been based on scientific analysis of urban issues. It attempts to beat the mouse while setting free the lion. In essence it denies the poor the right to live in a city with dignity and perpetuates their vulnerability and insecurity. Therefore it needs to be opposed and shot down.
Dr. Amita Bhide is a Lecturer in the Department of Urban and Rural Community Development at the Tata Institute of Social Sciences, Mumbai, and is associated with the committee for Rights to Housing.
Dr. Amita Bhide, Whither The Urban Poor?, – Review of the Slum Areas of Maharashtra (Improvement, Clearance and Redevelopment ) (Second Amendment) Act, 2001, Combat Law, Mumbai, 01 April 2002. [C.J10b010402]