It is estimated that roughly 40-50 percent of Mumbai's total population of 18.4 million stay in slums. Dharavi, a 2.1 sq. km. irregular pentagon in the heart of Mumbai, which is Asia's biggest slum after Orangi town in Karachi, had reported 1,541 confirmed Coronavirus cases until May 25. After all, social distancing is challenging in an area that has a population density of 869,565 people per square mile, and also includes 5,000 businesses and 15,000 single-room factories. While the Brihanmumbai Municipal Corporation disinfects Dharavi's 225 public bathroom complexes daily, each toilet is still used by at least 50 people per day. Govandi, which is another large slum in Eastern Mumbai and has the worst human development index of any ward in the city, has also shown similar distresses. A report by Brookings India finds that Mumbai's slums have disadvantages built into their fabric since "people live in crowded quarters" and lack the "provision of clean water for hand washing" as well as "good quality masks." Unsurprisingly, almost two-thirds of Mumbai's containment zones are either in slums or next to one.
Under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, there already exists a legislative provision which should have long resolved the housing crisis in Mumbai's slums. In Dharavi for example, Dubai-based SecLink Technologies Corporation won a 28,000-crore bid to develop the slum area over a year ago. However, the contract for the project has still not been awarded, forcing the company to demand compensation to the tune of 2,299 crores. Across Mumbai, about 1384 "Letter of Intents" have been issued by the Slum Rehabilitation Authority (SRA) to develop slum areas. But, only 10 percent of these have seen results so far. In other words, only 2.06 lakh families have received apartments under this scheme in last 23 years. At this rate – an average of 8,963 families getting homes annually – it would take more than a century to rehabilitate all of Mumbai's slum dwellers. Delays in completing SRA projects have meant that the state government now has about one-third of the total Covid-19 cases and deaths in India. Maharashtra's current Covid-19 mortality rate is roughly a percentage point higher than the national average (1695 deaths in 52,667 cases at the time of writing).
The pandemic should strongly encourage Maharashtra's government to rethink the implementation of its slum rehabilitation policy. The primary issue has been that despite its repeated lack of success, the government's approach has so far, relied on increasing the concentration of executive powers under Chief Executive Officer (CEO) of SRA. While having a nodal agency is important to streamline statutory compliance and reduce bureaucratic delays, the concentration of discretionary powers with a single individual has shown no evidence for improving the delivery of slum rehabilitation projects. Instead, the government should repose its faith in transparency and accountability. The decision-making process within SRA needs to become more transparent for both developers and slum dwellers. This can be achieved by actively implementing the time-bound standard operating procedures established in the SRA Citizens Charter—rather than the current practice of leaving much to the arbitrary discretion of administrative officers. To avoid unnecessary deviation from these timelines, it should be mandated that delays are followed by a full and public declaration from CEO SRA stating its underlying reasons.
Moreover, the state government has erroneously viewed the watering down slum dweller's consent to expedite schemes favourably. For instance, the Maharashtra State New Housing Policy, 2015, states that in case slum dwellers fail to appoint a developer, "SRA will call for competitive bids from private developers through a transparent bidding process and appoint the developer." The consent of slum dwellers in this case would not be required. However, rather than expedite projects, this measure threatens prolonged delays. For instance, in Susme Builders vs. CEO, SRA the Supreme Court, setting a two-year deadline, asked SRA to use open tenders to select a renowned builder with the best offer to complete the project. The judgement was passed on January 4, 2018 but no progress has taken place so far, as the developers' response to the repeated tenders has been lukewarm at best. Therefore, there is a need to work with (instead of around) slum dwellers' consents, while confronting the reality that builders could seek to foment factionalism to serve their own ends.
First, SRA needs to establish a developer's technical and financial expertise to execute the project prior to accepting their proposal. Currently, this takes place under Annexure III or the third stage of the proposal's scrutiny by SRA—and desperately needs to be moved forward in time. An official information booklet including the developer's credentials and past history should also be uploaded to the SRA website and provided to slum dwellers to enable them to make the most informed choice. To fast-track the selection of developers, the government needs to raise the awareness of slum dwellers and make sure they have access to trustworthy sources of information.
Secondly, since horse-trading has typically been a problem in SRA schemes (with rival developers attempting to buy off support for their proposals) it must be statutorily held that consents given in favour of a developer appointed by a Society or Federation are always irrevocable, unless vitiated by coercion, undue influence, mistake or fraud. In Balasaheb Torbole's case, the Supreme Court has held that the procedures to be followed for the implementation of the Annexure II (second stage, where the builder's proposal is scrutinised by competent authority), while not mandatory statutory laws, are still guidelines that remain in force unless there is a legal injury to the claimants. However, SRA would not be able to decide such questions of contractual infirmities. As such, it is suggested that with regard to consents given in favour of developers by individual protected slum residents should be made irrevocable by way of legal fiction at the inception (as it is being acted upon), with some buffer period for revocation.
Third, the tendency of rival developers to file writ petitions in the Bombay High Court or move applications before the Apex Grievance Redressal Committee (AGRC) – which is a specialised quasi-judicial body that oversees SRA cases and is constituted by Bureaucrats – to sabotage, extort, stall or take-over on-going slum rehabilitation projects also needs to be addressed. Here, a legislation akin to the new amendments to the Arbitration and Conciliation Act, 1996, could be used to impose punitive costs on malicious litigants who have shown obstructionist motives. Unfortunately, with respect to SRA projects, a range of serial extortionists have emerged who have made a career out of filing frivolous petitions.
This is not to say that substantive challenges to schemes based on legal prejudice or harm should not be entertained or statutorily barred. But, the opposition to a particular developer or scheme should be constituted of a minimum number of complainants as a proportion of the entire slum population before the AGRC or the High Court takes suo moto cognizance of the matter. After all, the developer does require 51 percent of slum dwellers' consents to qualify for the project under SRA laws before issuance of the Commencement Certificate. To privilege isolated cases over the larger public good is not sound legal consideration. For individual cases that fail to meet the minimum threshold, the state government should create a transparent and regularised process through which developers can interact with slum dwellers, their societies, and federations to discuss their plans and respond to grievances or concerns during the course of project completion.
Simultaneously however, both SRA and the Courts need to be more cautious about the legitimacy of the processes through which developers obtain 51 percent of the consents. Slum dwellers must be given the opportunity to examine the details of the proposed scheme in a fair and transparent manner, particularly with respect to the area and facilities which are to be provided to them, in order to lessen cases of misrepresentation or fraud.
Lastly, to address the problem of judicial delays, another AGRC needs to be set-up to deal with legal disputes arising out of SRA schemes; this would bring the total number to two. As the Bombay High Court noted in the case of Aslam Hasimali Shaikh and others vs. the State of Maharashtra, AGRC's desire to hear cases only once a weak (only on Saturdays) was "shocking." The judges therefore recommended that a retired judicial officer of the rank of District Judge should be appointed to the AGRC to ensure that cases were taken up regularly. Moreover, as the Supreme Court held in the case of Madras Bar Association vs. Union of India, even independent administrative tribunals set up to decide non-substantive questions of the law—such as the AGRC—in order to be constitutional, should follow the "salient characteristics" as regards, appointments, terms of office, qualification etc. of the Courts of record i.e. the Supreme Court or High Courts. While "judicial powers vested in superior courts" can be transferred to tribunals, all the "conventions, customs, and practices of the [superior] court sought to be replaced have to be incorporated in the tribunal created." In this respect, the AGRC violates two significant first tranche rights (1) natural justice, since CEO SRA is a member of the appellate authority despite being a party to most disputes, and (2) Article 21 or the Right to Speedy Justice, since they convene so infrequently. However, the state government has made no effort to heed the Court's advice so far.
Mumbai's slums are its ugly reality. Not because they house the poor and deprived in the city, but because they represent the abject failure of the Indian state to look after its citizen's welfare. The Indian republic's birth was premised on the social and economic upliftment of its peoples who had long been victims of the British Raj's exploitative plunder. Following on, housing is every slum dwellers basic right that allows them to lead a life of dignity. Still, the limitations of the SRA scheme and the compromise of slum dweller's rights have been laid bare by the Covid-19 outbreak. The worst-off in Mumbai are also the worst hit. We can only hope that the Maharashtra government's emergency measures will suffice to protect their lives. But, in the long run, slum rehabilitation will be essential to guarantee their future. The state must not fail them again.
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(Shriniwas Sharad Bobde is an Advocate in the Bombay High Court. Ameya Pratap Singh is a PhD Candidate at the University of Oxford.)