Rights to Mobility and Sustainable Urban Public Transportation in India

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Rights to Mobility and Sustainable Urban Public Transportation in India

– Abhayraj Naik* and Dattatraya T. Devare**

Introduction

This essay advocates for the recognition of legal rights to urban mobility and sustainable urban public transportation in India. Recognition of such mobility and transportation rights would guarantee rights-holders the ability to move through Indian cities (and access goods, services and opportunities) through transportation mechanisms and infrastructures that are affordable, accessible, equitable, and environmentally sustainable. Such rights would also imply correlative enforceable duties for duty-bearers, which are most likely to be specialised public authorities concerned with urban transportation as well as governments at the local, state and central level. While the analysis here is mostly informed by our ongoing work in Bengaluru, many of the comments apply to large cities in India in general.

Mobility and urban transportation in large and populous Indian cities like Bengaluru, Mumbai, Hyderabad, Chennai, Kolkata and New Delhi are characterised by crises and injustice. Urban residents in Indian megacities live with poor roads, inadequate and inaccessible public transportation facilities, and abysmal pedestrian and cycling infrastructure. Cities are the sites of unacceptably high numbers of road accidents, deadly levels of pollution, and harmful climatic disturbances that are directly attributable to poor transportation planning and to the uncontrolled proliferation of private motor vehicles.

High levels of traffic congestion in our cities wastes time and productivity apart from exacerbating health problems due to the increased exposure to transportation-linked pollution. Despite these all-too-visible negative consequences arising from the flawed imagination of transportation planning in urban India, a continuous stream of new transportation mega-projects decimate flora and fauna, waterbodies, heritage structures, and the sense of community of integrated urban neighbourhoods. Smaller and less-populated cities like Ahmedabad, Pune, Indore, and Chandigarh are already beginning to face some of these problems as they race to a toxic future.

How have we reached this alarming predicament? A complex set of causes and contributing factors are implicated. An overall failure of urban governance in India, the lack of capacity and vision in state and city-level governments, and poor and misguided leadership by successive national governments have generated dysfunctional and chaotic urban transportation systems in India. Contributing factors include the complex and intractable cultural politics relating to urban public space in India, a complete absence of monitoring and accountability frameworks for public service delivery, and an overall failure of the policy process that ignores key questions of implementation and citizen participation.

Transportation systems and schemes are often promoted, designed and developed on account of the bribes and kickbacks possible for government officials and politicians, and the profits possible for private companies, in and through particular kinds of urban infrastructural development. City-dwellers and private companies who promote inequitable and unsustainable urban infrastructural development, which disproportionately services car-centric ‘wants’ at the cost of other legitimate and pressing urban ‘needs’, are equally complicit in creating unjust and unsustainable Indian cities.

Legal rights to urban mobility and sustainable urban public transportation in India represent a potential solution to these states of crises and injustice in our cities. Such rights have been recognised internationally and can be built upon foundational elements present in the Constitution of India and in recent judgments of Indian courts. While statutory law and the legislative route would be ideal to enshrine such rights in India, it is more likely that Indian courts will hew out such rights-based pathways towards a sustainable and just urban mobility-transportation future in the short term.

Crises and Injustice in Urban Mobility and Transportation

Estimates suggest that 150,000 people each year and 400 people each day lose their lives on Indian roads. The state of urban transportation systems in India is abysmal. Sub-optimal and imbalanced investments in transportation, under-utilisation of existing investments, increasing lack of affordability, and decrease in public transportation ridership are common to most cities. Increasing losses for public transportation service providers, poor urban planning and lack of transit-oriented development, and an overall failure to move towards a well-planned and cohesive strategy characterise urban transportation systems in India.

Impoverished urban residents and travellers particularly suffer due to spiralling public transportation costs and poor service delivery. Pedestrians and cyclists in most large Indian cities have to deal with truly nightmarish conditions due to the car-centric priorities of city investment, urban design and traffic management. Walking and cycling facilities are completely missing, or unusable if they exist. The interests of women, the elderly, and the disabled are entirely ignored in the transportation planning and design process. Children face all kinds of difficulties in accessing and using public transportation services.

Given that most children walk or cycle to school in our cities, they are particularly disadvantaged by the car-centric design and planning frameworks embraced by our cities. In Bengaluru, it is estimated that pedestrians constitute nearly 52% of total road fatalities, with one-fourth of the injured and killed pedestrians being children and the elderly.

Simply put, a car-centric planning and design for urban transportation cannibalises the space and resources that could have been directed towards urban public transportation systems, facilities for walking and cycling, and other infrastructures for urban communal life and recreation. A number of reasons have been suggested for the car-centric model of transportation development that captivates urban planning in India. These include the lack of institutional capacity to instigate innovative approaches to transportation planning; manipulation of the institutional “analytical vacuum” by car-obsessed, middle-class, civic-society pressure groups and corporate interests; and limited enthusiasm from politicians for alternative thinking around transportation. At a more abstract-yet-critical level of analysis, Ivan Illich has perceptively pointed out (at p. 23) that: “[p]ast a certain threshold of energy consumption, the transportation industry dictates the configuration of social space.

Whatever the causes of car-centric planning in urban India, it is now increasingly clear that explosive proliferation of private vehicles and consequent traffic congestion are among the biggest urban challenges facing India’s large cities. Increase in private vehicle usage and traffic congestion, and faulty urban transportation planning, are directly responsible for serious problems of pollution, related health impacts, climate change, lost productivity and wasted time, and increasing cultural isolation due to fragmented neighbourhoods. Let us examine each of these problems in slightly greater detail.

In most cities across India, the transportation sector is the major cause of dangerously high levels of air pollution, and medical researchers in Bengaluru have pointed out how the spike in vehicular emissions is likely to be a major reason for an alarming recent increase in cardiovascular disease incidence and for asthma in children. Traffic is the biggest source of noise pollution in most major Indian cities – this situation is exacerbated by traffic congestion and faulty urban planning, and can have significant health impacts including hearing loss, elevated anxiety levels and stress hormones, heart disease, sleep disorders and cognitive impairment in children. Private vehicles, particularly single-occupancy big cars, disproportionately occupy the limited available road space, and significantly contribute to congestion in traffic and to rising air pollution.

Increasing urbanisation and reliance on private vehicle modes in Indian cities leads to significantly higher commuting emissions of greenhouse gases, thereby exacerbating the climate emergency that engulfs India and many parts of the world today. Total congestion costs in Delhi, Mumbai, Bengaluru and Kolkata were estimated in 2018 to be as much as USD 22 billion per year. Estimates have suggested that 1.18 crore Bengalureans waste 60 crore man hours annually due to traffic congestion. In the absence of dedicated public and non-motorised transport infrastructures in most of our cities – bus-users, cyclists and walkers also end up wasting their time on the congested city roads.

Road and car-centric transportation planning in Indian cities run roughshod over trees and lakes in urban environments, with potentially disastrous effects on urban fauna. Such a model of urban development exacerbates the climate change and pollution problems already present, and raises new problems of reduced monsoons, poor groundwater recharge, compromised water security, and loss of environmental heritage. Unplanned road infrastructure in Indian cities also destroys priceless cultural heritage and severs communities by creating a barrier between people and their needs and activities.

Causes and Contributing Factors

The causes and contributing factors for the crises and injustice in urban mobility and transportation in India are a complex and inter-related combination of historical, structural, cultural, and contingent forces. Many of these causal factors relate to urban governance in Indian cities in general. While this terrain cannot be explored in detail in this essay due to the limitations of space, some primary elements of the meta-narrative of the failure of urban governance in India may be synoptically pointed out here.

The larger contextual space for urban governance in India is constituted by the legacy of colonial institutional design for urban governance, governmental institutions that are poorly designed to handle increasingly complex social-technological-ecological challenges, and long-continuing structural adjustment programmes promoting rapid economic growth at the cost of balanced regional development. Other relevant socio-cultural factors here include a peculiarly Indian stubbornness and inertia that resists change that is not incremental, a middle class that remains fixated only on issues of decent living standards for middle class communities, a disorganised and fractured civil society, and the increasing stifling and repression of social justice and transformative movements by status-quoist and authoritarian governmental forces.

This unhappy picture of urban governance in India is completed by noting the prevalent dysfunctional socio-political system of democratic involvement in institutional governance, and a political-legal culture that is unprepared and unwilling for a constructive dialogue on urban sustainability, environmental justice, and participatory governance in India.

Urban governance regimes in contemporary India are therefore characterised by a number of features. Centralised control, low transparency, high levels of corruption, lack of capacity in state institutions, outdated bureaucratic functioning that resists collaboration and innovation – these are endemic to most Indian cities. More often than not, there is a mismatch between public welfare objectives and institutional design, the presence of highly polarised civil society organisations and citizenry, and a high tendency for urban governance processes to be captured by finance capital and biased powerful elites.

Let us now turn specifically to transportation planning and governance in urban India. State and municipal governments have been particularly inept at devising sensible frameworks for public transportation and mobility in Indian cities. Problems include poor infrastructural design, dysfunctional institutional frameworks, disconnect between land-use and transportation planning, perverse incentives embedded in faulty governance processes, and the overall lack of accountability and responsibility. The institutional nature of urban transportation planning in most Indian cities is characterised by an excessive centralisation, multiple agencies with multiple mandates, a lack of coordination and the confusion of mandates, and the problematic adoption of technologies of transportation without adequate transparency and debate.

Analysts have pointed out that municipal authorities in many cities lack the technical capacity to effectively plan for transportation and mobility, which leads to non-transparent and non-participatory decision-making processes tending towards ad-hoc, big-budget, “silver bullet” projects that are unsuited to the city’s needs. Governmental corruption and “corporate landgrab to the detriment of the public welfare” also result in seriously flawed mega-transportation projects being pushed through.

While patterns of automobile ownership are being disrupted in urban India, recent figures nonetheless indicate that the overall numbers of private vehicles are still increasing at an alarming rate in Indian cities including Bengaluru and Mumbai. The complicated cultural politics of people and civil society in urban India contribute to stymieing any quick and generic solutions to the mobility and public transportation crises. Aspirations of the ‘new’ liberalising middle class and the rich in urban India – to own more cars, the bigger the better, for example – do not necessarily align with genuine sustainable transportation considerations or with the interests of the working classes and the urban poor.

Civil society organisations and social justice movements working on mobility, public transportation and environmental issues in specific cities in India are often in disagreement with each other on the framing, nature and causes of the problems involved and on the best way forward. While divergence and a plurality of positions represent a positive state of democratic functioning, fractured fronts and entrenched disagreements within civil society and social justice movements make it difficult to arrive at unified strategies and actions in responding to the urban mobility and transportation crises in Indian cities.

A number of national-level policy instruments – for example, the National Urban Transport Policy 2014, the National Urban Transport Policy 2006, the National Transit Oriented Development Policy 2017, and the Metro Rail Policy 2017 – include progressive principles and concepts relating to urban mobility and transportation. These principles and concepts include: the equitable allocation of road space, focus on people rather than vehicles, encouraging integrated land use and transport planning, encouraging greater use of public transport and non-motorised modes, integrated multi-modal transport systems, addressing of road safety and pollution concerns, promoting the use of cleaner technologies, universal accessibility, regulation of parking, comprehensive mobility planning, transportation demand management, controlling the use of personal vehicles, participatory approaches, capacity building, public awareness, formation of unified metropolitan transport authorities, and so on.

However, despite the existence of these policy documents and the progressive principles contained within them, there is a massive policy failure in India due to the complete lack of focus on implementation, citizen participation, monitoring and accountability. These policies and principles remain on paper with the actual state of urban mobility and transportation in most large Indian cities being truly unjust and unsustainable.

A Rights-based Approach to Mobility and Sustainable Urban Public Transportation in India

A rights-based approach to mobility and sustainable urban public transportation in India offers several advantages. Declared and enforceable rights enable demands to public authorities for the effective implementation of sensible policy and planning processes. Duty-holders are identified and made explicitly responsible following the clear articulation of an enforceable legal right. As such, enforceable rights have a radiating effect on relevant legislative, policy, planning and implementation processes at all levels of governance.

Rights also transform entrenched cultural practices by providing a new set of reasons for people to act or behave in a particular way. Further, legal rights allow for a systematic and uniform approach towards judicial redress for rights violations in specific transport-linked scenarios in specific cities. Finally, rights empower common people, civil society organisations, and social justice movements to pursue goal-oriented changes and reform, apart from generating awareness within the media and in government decision-making circles.

Interlacing considerations of equality, fairness, inclusion and environmental sustainability are often involved in many concrete scenarios of mobility and urban public transportation. We believe that affordability, accessibility, equity, and sustainability should be the key indicators that comprise the substantive content of rights to mobility and sustainable urban public transportation in India.

Considerable support is to be found in some important international documents. For example, the right to freedom of movement is a fundamental human right under Article 13 of the Universal Declaration of Human Rights (UDHR) and Article 12 of the International Covenant on Civil and Political Rights. Article 21(2) of the UDHR further provides that everyone has the right of equal access to public service in their country. Article 9 of the Convention on the Rights of Persons with Disabilities requires States to take appropriate measures to ensure to persons with disabilities, access, on an equal basis with others, to transportation. Finally, Article XIII of the World Charter for the Right to the City provides for an express and detailed right to public transportation and urban mobility.

Mexico City represents a paradigm example of a successful mobility rights campaign. On July 14, 2014, Mexico City passed a new law explicitly guaranteeing the right to mobility, while also specifying that mobility is the right of each individual and of the society to move freely and access goods through the different modes recognised in the law. The law also created a new mobility hierarchy, placing pedestrians and cyclists above motorists, and prioritizing active transport.

In the Indian context, we have not yet seen any gestures towards rights to mobility and sustainable urban public transportation through the legislative route at the national or state-level. Indian law, however, does already contain the seeds for the declaration of such rights. For example, Article 19(d) & (e) of the Constitution of India provide that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. Articles 14 and 15 of the Constitution enshrine equality and non-discrimination rights for citizens. The right to life guaranteed under Article 21 of the Constitution has been interpreted by courts to include a dignified life with a right to a healthy and pollution-free environment.

Further, Article 38 (2) of the Constitution of India provides that the State shall endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also amongst groups of people residing in different areas. Article 39 (b) and (c) of the Constitution mandate the State to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Finally, Section 41 of The Rights of Persons with Disabilities Act, 2016 requires appropriate governments in India to take suitable measures to provide access to transport for persons with disabilities.

The linkages between universal urban mobility,  sustainability, inclusion, the fundamental human rights to freedom of movement and to equality, and the transportation-linked opportunities required for a dignified human life in cities, have now begun to receive increasing attention across the world. This clarity and understanding has now begun to feature, albeit in a nascent form, in legal discussions in India.

A number of recent judgments from Indian courts touch upon issues of mobility and sustainable urban public transportation. In the aftermath of the recent air pollution crisis in Delhi, the Supreme Court of India pushed for the speedy implementation of the regional rapid rail transit system, called for the expedited finalisation of a parking policy for the city, and ordered the implementation of a scheme to augment Delhi’s bus fleet including through electric buses. On 2nd September, 2019, the Supreme Court of India noted the abject failure of the government and the authorities to provide adequate public transportation to the citizens of the country while directing that the draft Delhi Maintenance and Management of Parking Places Rules 2019 be notified at the earliest. The court also drew a connection between proper parking policies and less pollution, less crime, and a better and more dignified life as guaranteed under Article 21 of the Constitution while passing a series of directions to further regulate parking conditions in Delhi.

Both the Supreme Court and the Delhi High Court have also recently reiterated the importance of safety and mobility for women, including in the context of taxi aggregators such as Ola and Uber. In the Rajive Rathuri case, the Supreme Court for over a decade has been monitoring, among other considerations, the needs of disabled persons across India to safely access transportation facilities. Relatedly, the Delhi government’s decision to procure standard floor buses was recently (unsuccessfully) challenged by a disability rights advocate before the Supreme Court. In a particularly interesting judgment, the Delhi High Court in March 2019 has also endorsed the “right to the city approach” as a part of Indian law and policy.

The Bombay High Court has held that properly maintained roads and footpaths are enforceable fundamental rights while providing for a number of directions that facilitate the realisation of citizens’ rights in Mumbai. The Karnataka High Court in 2016 had directed the Bengaluru municipal authority to keep the city’s footpaths free and easily accessible by pedestrians. Further, as part of an ongoing case, the Karnataka High Court has recently reiterated that good roads fall under the scope of the fundamental right to a meaningful and dignified life, has clarified that citizens who suffer any loss or injury due to hazardous road conditions in Bengaluru can directly seek compensation from the municipal authorities, has issued a series of other directions to promote monitoring of the conditions of roads, and has sought a detailed status report on the issue from the municipal authority.

Most recently, on 21st October, 2019, the Karnataka High Court took note of a public interest litigation petition that draws attention to the fact that the state government had failed to implement binding conditions related to integrated urban mobility planning that were required for the Bengaluru metro rail project. The petition had pointed out environmental, economic, and equality-linked consequences in Bengaluru of such failure by the state government to comply with the binding conditions of a comprehensive mobility plan and an integrated approach to transportation planning.

The High Court in this case directed that the Karnataka state government and the relevant ministries of the Union of India file their objections by 8th November 2019 setting out, respectively, the steps taken (by the state government) to comply with the binding conditions relied on in the petition, and the steps taken (by the relevant central government ministries) to ensure that the state government abides by the binding conditions. By way of disclosure, we must point out here that the first author of this essay has been assisting with the research and strategy for this ongoing petition, and the second author is the first petitioner in this public interest litigation currently before the High Court of Karnataka.

It appears likely that we will see many more interventions towards mobility rights and sustainable urban public transportation in India through public interest litigations in courts in the near future. While the big question of whether courts can bring about social change in contexts of sustainable transportation in India continues to be vigorously debated, it is equally important to continue to pay careful attention to the particular local and national contexts that steer the outcomes of the dialectic between law and social movements in India.

Scholars have pointed out that the risk of bourgeois environmentalism using the courts to exclude basic concerns of the working class is a very real threat in India. It has also been pointed out that in recent times, the higher judiciary in India seems to be tilted in favour of development and infrastructure projects, side-lining environmental issues and the rights of people dependent on the environment for their livelihood.

It is not possible for us to comment here on these critical positions apart from indicating the concerns that have been raised by such analysis. What we can say here however is that while a rights-centric approach championed by the judiciary represents a promising transformative pathway to the crises and injustice in mobility and urban public transportation in India, such an approach will need to pay careful attention to inclusivity and sensitivity for the poor and marginalised in our cities. Appropriately balancing environmental and equitable considerations in the transportation planning for urban India   will not be an easy task by any measure. Fully realising the promise of rights to mobility and sustainable urban public transportation in India will require a multi-pronged city-centric strategy that brings together activism, awareness, capacity-building, collaboration, education, mobilisation, monitoring, network-building, research, policy-making, public interest litigation, and visionary law-making.

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*Abhayraj Naik is a Bengaluru-based consultant and researcher. He is also a Visiting Faculty at the Azim Premji University. Email: abhayrajnaik@gmail.com

**Dattatraya T Devare is a Bengaluru-based environmentalist and information activist. He is also a Trustee of the Bangalore Environment Trust. Email: devaredt@gmail.com

The authors are grateful to the editors of the NLSIR for their extraordinary patience and for helpful comments on an earlier draft of the essay. The responsibility for all views stated here, and for any errors that might have inadvertently crept in, remains with the authors.

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