Delhi146;s future, desealed

And all along we had thought law and order was the hallmark of a working government

The crisis over sealing in Delhi is symptomatic of a broader morass that all of us seem to be sinking into 8212; collectively. The government is culpable because it allowed widespread and continuing violation of law to occur while patently allowing its officers to prosper in conniving with that violation. This abandonment of the basic function of law enforcement is only reinforced when the Union minister apparently pleads that the sealing cannot go on because marauding mobs of traders cannot or will not be controlled. There may be good reasons not to proceed with sealing but this cannot, and should never be, one of them. It is worth recalling that dismissals of state governments have often been sought citing breakdown of law and order. To add to this farce, the chief minister is now demanding that sealing issue be made non-justiciable by placing the relevant laws in the Ninth Schedule.

Given this attitude, it is not surprising that the only actions of the government these past many months are two notifications issued on September 7 and 22, whose legality is still being examined. These deal with streets and localities that could be re-zoned for mixed land use and specifications on buildings being used for mixed purposes. Compared to its other efforts, the process of notification was efficient. The Municipal Corporation of Delhi MCD provided the list of roads based on its field survey on September 11, barely one working day after the notification on September 7 and the notification was gazetted on September 15.

In an earlier column here, four tests were outlined for mixed use, namely a need to have development plans for necessary additional infrastructure before the change of land use, b setting conversion charges at a level that penalised the flouting of the law, c a more transparent accounting of increased revenue accruing to the MCD, and d statutory local consultation with and agreement of RWAs.

Tested against these four measures, the notifications8217; plans for infrastructure are vague, the conversion charges are not yet defined, and while the amount will be in a separate account, this is at the level of the MCD, with no clear benefit for the local community. Most importantly the MCD is only required to make 8220;genuine efforts for meaningful consultations with RWAs,8221; a level of involvement that will only become clear with time, but certainly falls far short of agreement. Indeed, while the notification does mention specific requests from RWAs, the indicated section is silent on the matter, another indicator of the government8217;s lackadaisical approach.

The traders are equally to blame. It is difficult to believe their ingenue-like protestation that the government permitted them to continue their business, when they must have bribed the authorities. This cynical approach to flouting the law continues in the current and unfortunately successful attempt to blackmail the state by using violence as a primary technique of protests. To make it worse, all political parties, both the ruling and the opposition, seem to be fanning the fire.

The court in this instance cannot really be accused of judicial activism, since it is insisting only on the application of existing laws, but it has confused the matter by creating two types of affected parties. The first are the 44,000-odd traders who submitted affidavits that they would voluntarily cease activity if they were illegal. They are now subject of closure, at the end of the interim relief period granted to tide over the festive season, while traders in areas covered by the sub judice notifications have until January 31. This has created a piquant situation where those who have submitted affidavits in good faith have to shut shop while those who are yet to comply can continue in business. To add to this, the MCD reportedly estimates that almost 90 per cent of the 44,000 traders are in the notified areas. The court could have also fashioned a more constructive remedy by directing the government to frame a transition plan rather than applying the pressure indirectly by insisting on sealing, though it must be admitted that sealing, as opposed to demolition, is an appropriate remedy for the illegal use of space, since the physical space is preserved for future legal use.

Balancing the interests of residential and commercial use is possible. There are broadly two types of areas where they co-exist. In one, there is little conflict because commercial livelihoods are practised out of residential premises, mostly in low-income neighbourhoods. The second is where commercial activity has grown as part of an organic process of clustering. Fortunately, these clusters are mostly areas where the existing infrastructure is broadly conducive. But the brunt of this is borne by the contiguous residential colonies. If civic inconveniences arising from mixed use can be managed 8212; for example, by improving local parking management, improving locality parks and improving in-colony roads 8212; it would assuage the discomfort to some extent. The financing for the additional expenditure on public facilities can be raised from the offending properties making them pay for violating the law. Residents who are still not comfortable could move at a profit since curiously, in Delhi, residential property values go up near commercial areas.

Story continues below this ad

To progress therefore either the government on its own or on direction from the Supreme Court would have to prepare a plan for a credible transition to mixed use, which looks unlikely today since the traders have no interest in obeying the law, or the government in enforcing it, and the court is confused in this thicket of realpolitik. But the real pity is that we, as a people, are not upset by the fact that the entire premise for the growth of Delhi as a commercial space is illegal. And that makes us culpable too.

The writer is a senior fellow at the Centre for Policy Research, New Delhi