Prem Shankar Jha
Hindustan Times
February 24, 2006
About a dozen years ago, when the Supreme Court and various high courts began to order the executive branch of government to implement existing laws, most Indians believed that they had at last found a means of enforcing accountability upon a bureaucracy that had become a law unto itself. A few of us felt a twinge of unease because we were achieving all this by allowing the judiciary to cross the line between it and the executive. But we suppressed it because in this case the end seemed to justify the means.
Recent developments have shown, however, that the unease we felt in the late Nineties was not unfounded. In the last few years, the judiciary has crossed that line with increasing frequency. As it has done so, the drawbacks of trying to govern a country by judicial fiat instead of through the executive have become more and more apparent. Nothing has brought this home more forcefully than the spate of orders passed by the Supreme Court and the Delhi High Court to bring all urban development within the capital strictly back within the Master Plan. Beginning with the Supreme Court’s order to demolish all unauthorised construction, it has extended to the destruction of shopping complexes in the Lal Dora areas (the original villages that had been left out of the Master Plan), to a ban on all commercial activities in residential districts and, most recently, to running banquet halls and marriage gardens in residential areas and in farmhouses without a 60-feet wide road adjoining them.
These orders have created havoc in the city. Soon after the municipality’s bulldozers and cranes swung into action it became apparent that they were selectively destroying the homes and shops of ordinary people while sparing the rich and the politically well-connected. This enraged the Supreme Court which issued stern orders that no one should be spared and asked for reports on the progress of the demolition. The Delhi administration then leaked the information that 72 per cent of the construction in Delhi was unlawful in whole or in part. It begged the central government to pass an ordinance that would spare it from having to implement so draconian an order, but the Centre threw the ball back in its court. Since then, while it has been struggling to frame a law that will distinguish between minor and gross violations of building laws, the demolitions have gone inexorably on, egged on by sanctimonious NGOs.
The havoc is only beginning. It is estimated that if all unauthorised shopping complexes are demolished, hundreds of thousands of crores of assets will be destroyed. These are assets created out of hard-won savings, by people who have had the guts to risk their money and the creativity to succeed in a dog-eat-dog world. These are not just private, but national, savings. Strictly implemented, the Supreme Court’s ruling will destroy capital in a poor nation that is crucially short of it. The immediate impact will be on employment. Half a million people will irretrievably lose their jobs. The impact of closing all commercial establishments in residential areas, including wedding gardens and banquet halls, will depend upon whether the owners are able to find another location to reopen in. But in all, another 300,000 people will be either temporarily or permanently remain without work. Delhi’s plight highlights the perils of government by the judiciary. On the face of it, all that the apex courts have done is to grant relief to the public from the effects of the government’s failure to implement its own laws. But laws are not graven in stone: had that been so, there would have been no need for, indeed no room for, judicial interpretation. To remain relevant and command respect, the law itself must constantly evolve in the light of changed political, economic and social circumstances. For this to happen, some laws need to be reinterpreted; others need to be changed. Any law that fails to adapt to changes in society risks suffering the fate of prohibition laws in the US.
A law becomes outmoded or counterproductive when a large part of the population begins to disregard it. The signal of its obsolescence is a rise in corruption. By both these yardsticks, Delhi’s Master Plan is badly out of step with its needs. That is why the Supreme Court’s judgment is retrograde: for, on this occasion it is the Master Plan that needs to be changed. But to make this point, the court would have had to condone the violations of the law that hadalready taken place. That was, quite simply, impossible. Delhi’s Master Plan has failed to meet the needs of its residents for two reasons. The first is the city’s exponential growth. In this, its plight is no different from that of cities in other developing countries whose population has grown by 5 to 8 per cent a year.
The second is a profound flaw in the Master Plan itself. The nature of this flaw becomes apparent when we examine who will be affected by the court’s order. The common feature of the shopping complexes, offices and boutiques in residential areas, banquet halls and wedding gardens slated for destruction or closure, is that they all provide not goods but services. The conclusion is inescapable: the Master Plan simply did not provide for the growth of the service sector in the city. In this too, Delhi is not unique, for no Master Plan of the 20th century has done so anywhere in the world. The unplanned ‘organic’ growth of cities in earlier centuries was replaced with blueprints that neatly compartmentalised cities into residential, commercial and industrial areas.
With the rise of mechanised transport, the areas over which each of these sectors extended became larger and larger. A typical example of such mechanistic planning is Chandigarh, which has a single industrial area and a single commercial area to serve the entire city. But human beings and human needs cannot be fitted easily into such pre-conceived moulds. Doxiadis pointed out that in the days before mechanised transport, every activity was concentrated within a distance that was, at most, an hour’s walk or ride away. This meant that the largest of cities seldom had a diameter of more than six miles, and within this, all activities were liberally interspersed. Today, this pattern is only visible in the cities of Europe and the three or four oldest cities of the US. In these, the ground floors of buildings are typically occupied by shops, offices, restaurants and cinemas while people live in the upper floors. Left to themselves, human beings try naturally to recreate this pattern because it creates the most liveable cities. In India, the urban services sector accounts for almost 80 million jobs — eight times the number of jobs in the organised sector.
The poor at the bottom of the services pyramid live in illegal shanty towns in order to be close to their places of work. These are the people whom an earlier court order brutally evicted a year ago. But in the past decade and a half, as the middle-class has exploded, a new category of service sector establishments has come into being to cater to its leisure and lifestyle needs. This is what the shopping complexes, the strips of shops along the Mehrauli-Gurgaon road, the boutiques, restaurants and small offices in residential and Lal Dora areas have been doing. Together, they have turned Delhi from the joyless, prohibition and permit-ridden city it was 30 years ago, into the vibrant and exciting metropolis that it is today. Tearing all this down will not only destroy close to a million jobs and a large part of the nation’s capital: it will also tear the soul out of the city.
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