Kaohsiung 2010 Papers: Are streets meant for travel alone?

This essay contests the idea that streets are for travel alone by critically examining the logic and language employed by the elite to delegitimize two marginalized groups using streets for non-travel purposes: hawkers and pavement-dwellers. Further, court cases interpreting constitutional guarantees in the context of hawkers and pavement-dwellers are examined. Based on these discussions, an attempt is made to provide an alternative framework for the governance of streets, in which streets are seen essentially as shared commons whose use is subject to democratic decision-making based on shared goals of society.

Two disclaimers are necessary at the outset. One is that this essay speaks almost entirely about streets in India, because those are the only streets I feel comfortable speaking about – however, I invite my international audience to judge for themselves the applicability of my arguments to the streets in other countries. The second disclaimer is that this is not an academic piece of work. I have no pretensions of possessing all the evidence needed to justify my claims. What is intended here, however, is to present the outline of arguments that can and should be used in the defence of some of the most marginalized and victimized users of streets, hopefully strengthened by supporting evidence.

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Dictionaries define streets as public thoroughfares, and thoroughfares are places of passage from one place to another. This is an axiom which lies at the heart of transportation planning – streets are meant for travel.

And yet, across India, streets are used for a bewildering variety of purposes. Hawkers sell their goods, children play, men urinate on the walls, protestors shout slogans, and the devout celebrate the victories of the gods. For many people, the street is home – the only space they can call their own in the whole wide world. For others, it is an open space, a meeting space, a playground, or a place to earn one’s livelihood. And yes, lots of people do use it for travel.

Streets have served these multiple purposes for a long time. For instance, idols in Indian temples have been taken out for processions for at least a thousand years now. And quite possibly, the first markets that evolved – before cities of any sort came to existence – consisted of street vendors marketing their wares to passers-by at road intersections.

What we have here is an inconsistency: the “theory” of transportation planning tells us that streets are for passage alone, but in reality, streets are used for many purposes unrelated to transportation. If we were to maintain that streets are meant for travel alone, we would be ignoring the entire history of human settlements. But if we were to discard this axiom, then we are faced with questions that have no easy answers: what purposes are legitimate? How do we share space? Who decides? How are conflicts resolved? Does the regulation of street-space occur within formal government institutions or through informal means? Which should we, as planners, prefer?

Initially, the questions that I have chosen to comment on appear to sit uncomfortably with the primary topic of this conference – sharing in transportation. However, it is my contention that the issues surrounding sharing with other uses have a lot in common with the issues that sharing in transportation has to deal with. For instance, both face questions of legitimacy: on one hand, are street-vendors legitimate users of streets? And on the other, are bullock-carts, camels and cycle-rickshaws legitimate users of the street? In both cases, devising mechanisms to share space and resolve conflicts are the basic goals for research and action. And in both, we have to make difficult choices between formal and informal methods of regulation. Formal regulations are easy to legislate, but increasingly difficult to enforce. Informal methods may find success in implementation, but there arise questions of legality and fairness.

This paper will restrict itself to the first of these questions, i.e. what are legitimate uses of streets? Two non-travel uses of streets will be used as case-studies: hawking and pavement-dwelling. We will critically examine the logic and the language used to delegitimize these uses and users, thereby making sense of the underlying values and assumptions.

Hawkers and walkers: possibilities for symbiotic co-existence

The commonest argument against street vendors is that they reduce the right-of-way for pedestrians. They are seen as encroachers on already diminished pedestrian space and freeloaders using public space for private purposes. Despite this apparent conflict, there is reason to believe that pedestrians and street vendors benefit from each others’ presence. Hawkers offer crucial services to pedestrians at cheap prices. Dr. Geetam Tiwari, associate professor of transport planning at the Indian Institute of Technology in Delhi, argues that “pedestrians need cobblers on the road to have their footwear fixed, just as much as car owners need tyre repair shops… All commuters need cold drinks, snacks and other services on the roadside. These services have to exist at frequent intervals, otherwise walking or bicycling would become impossible, especially in summer.”

Hawkers also perform another crucial service: they man the streets at all odd hours of the day, hence serving as “eyes on the street”. It is for this reason that the crowded streets of Bombay are universally considered safer than the deserted streets of New Delhi. In return, pedestrians offer hawkers an opportunity to earn a livelihood.

This is not to deny that conflicts do not exist. Take William Whyte’s study of pedestrian spaces in New York City, for instance. When New York City made a part of Madison Avenue traffic-free for a time, it was found that “food vendors were centers of activity. Wherever they setup carts, usually at the curb, knots of people formed.” And yet, in the same article, referring to “the pass” at Lexington Avenue and 57^th St. in Manhattan, Whyte says, “the exasperating street had its sidewalks narrowed to twelve and a half feet. The effective walkway, however, ranges from four to six feet, depending on the placement of signs, floral displays, vendors’ tables and various impediments.”

This provides us with an interesting perspective on vendor-pedestrian conflicts: they are a result of widened carriageways at the expense of footpaths – a case of two victimized groups squabbling over an ever-shrinking slice of the pie, while the elite appropriating the largest share of the pie for vehicular use questions their right to use the street.

Unfortunately, most city governments in India do not share this perspective. In Mumbai’s busy marketplaces outside commuter rail stations, the regional development authority has built “skywalks” (elevated walkways) to separate pedestrian traffic from street vendors, though it is observed that most commuters like to do their shopping on their way back from work. When hawkers attempt to set up shop on the skywalks, the police is called in to evict them. Even “right-to-walk” advocates turn against hawkers, thinking through the narrow prism of traffic flow and thereby losing sight of the possibilities for mutually beneficial coexistence of hawkers and walkers. In the meanwhile, cities like Bangalore continue to widen carriageways, which will result in further conflicts between pedestrians and hawkers.

Pavement dwellers and parked vehicles: contrasting attitudes of planners

In the previous section, I argued that vendors offer crucial services to pedestrians, but we must be careful not to take the utility to pedestrians to be the sole factor in deciding their legitimacy. Such synergies might not always exist – for instance, pavement dwellers do pose obstacles to pedestrians, and might also be seen as causing streets to be unsafe or visually unaesthetic. And yet they may have other claims which need to be considered.

Pavement dwellers, we must recognize, live on pavements because they have nowhere else to go. In cities like Mumbai, land distribution is extremely unequal, and more than half the population resides in slums occupying only 6% of the land. As result, even slums become too costly for the poorest households and they have no option but to live on the streets, with little shelter, no services and no security whatsoever. The number of houseless persons in Mumbai is staggering – 39000 persons as of 2001. At least some of these people might have ended up on the streets, either sleeping under the open sky, or creating a rickety shelter for themselves till the next monsoons.

And yet, pavement dwellers are routinely evicted without any alternative arrangement provided to them, often in the name of footpath improvement. This insensitive treatment meted out to the most disadvantaged persons in society must be contrasted with the manner in which the issue of car and two-wheeler parking is dealt with. Parking poses just as much of an impediment to pedestrians, cyclists and motorists as pavement dwellings. And yet planners consider parking to be a legitimate use of the street, even when there is no explicit authorization to park at a spot. Nor do the Mumbai police crackdown on illegal parking on pavements with the same enthusiasm they have for harassing pavement dwellers.

The justification for on-street parking is similar to the argument advanced by pavement dwellers: car-drivers argue that since builders do not provide sufficient parking lots for visitors, shoppers and even residents, vehicle-owners have no choice but to park on the streets. When pavement-dwellers argue that they cannot afford housing in the city, it is argued that they must find market housing at some other location (which is quite similar to Marie Antoinette asking the French Revolutionaries to eat cake instead). When rehabilitation is provided to pavement-dwellers, it is at a great distance to their place of work and the site lacks the most basic amenities. But vehicle owners are not asked to find their own means of parking elsewhere – rather, Mumbai has tried to rehabilitate cars by commissioning more than 150 multi-storey parking lots at central locations in the city.

We thus see that not all stationary objects on streets are considered illegitimate; parking needs are often taken into consideration even though this might frustrate the object of maximum traffic flow. The definition of a transportation use itself is changed to include parking. Definitions of phrases like “street” and “transportation use” themselves begin to carry value-judgments, and it begins to appear as if the elite use the tools of definition and redefinition to tilt the balance in their own favour.

Streets as exclusive Transportation Zones?

The idea that land-uses need to be segregated might possibly be the root wherefrom emerged the idea that streets are exclusive transportation zones and other uses are illegitimate. This claim is supported, primarily, by city and neighbourhood-level zoning plans that zone streets for the exclusive use of transportation.

Zoning itself is a 20^th century import to India from Britain. The first Town and Country Planning Act in Bombay was passed in 1915, merely six years after the first such Act was enacted in Britain. Another instrument of state intervention was the City Improvement Trust that came into being in the 1930s. Both these instruments were used by the colonial administration in India to demolish en masse the old neighbourhoods of Indian cities with their narrow crooked streets, and force them into orderliness, with wide motorable streets between buildings. Streets previously being used for a variety of purposes including transport were now appropriated to serve transportation needs (including the needs of new motor vehicles that the colonial masters were beginning to import to India). Planners in Independent India retained most of these basic axioms of colonial planning – they continued to demolish and redevelop historic cores of old Indians cities, thereby seeking to deprive Indian streets of their vitality.

However, whereas zoning works on the premise that separation of land-use is beneficial and furthers public interest, there is little to support this claim to public interest. Planners have tried, for nearly one century now, to separate land-use, to relocate “undesirable” land-uses to the periphery, and to preserve streets for the sole use of transportation. Needless to say, it has not worked. Chandni Chowk in Delhi, Avenue Road in Bangalore and Sowcarpet in Chennai continue to serve, primarily, as shopping centers. Neither the streets nor the adjoining buildings conform to the designated land-uses. In addition, streets and buildings in newly built colonies have also taken on multiple purposes – even though planners never intended this to happen. Where such mixed uses do not exist, streets become monotonous and unsafe.

The separation of land-uses, as we now know, increases demand for transportation and renders non-motorized less feasible. This puts a further strain on the streets – the more automobiles they have to provide passage for, the less space they have for other purposes. This is often at the heart of conflicts in the use of streets – for instance, the widening of Avenue Road in Bangalore was to make way for cars going to the new airport thirty kilometers from the city centre, and it would have displaced at least one hundred thousand persons, many of whom sold second-hand books or snacks on the pavement.

Finally, separation of land-use often has a disproportionate impact on the poor. The elite can afford to live in apartment complexes, eat at restaurants, shop at malls, walk in parks, play in playgrounds and work in office buildings. For the elite, streets might appear to serve no purpose other than transport. But the poor often have no choice but to shop, eat, play and work on the pavements – the most disadvantaged often end up living on the pavements. Thus when we say that streets are for travel alone, we are playing into the hands of the elite for whom the use of streets can be maximized by appropriating all of the space in streets for (motorized) travel. But the impact of such transfers will fall hardest on the poor who have nowhere else to go to.

Separation of land-use thus has little basis either in the existing urban structure or in public interest. Today, when the world is beginning to take note of sharing as an alternative to separation and clear demarcation of land-uses, the multiple uses of streets (and buildings) in India should serve as a model for planning.

Hawkers, pavement dwellers and the Supreme Court

Eventually, all questions of legitimacy must find their answers in the law of the land. Law itself has several sources, but the two primary sources are the Constitution of India and acts of the Parliament (or the state legislature, as the case may be) in the furtherance of public welfare. The claims made by zoning statutes to public interest were challenged in the previous section. In this section, we shall study the impact of India’s fundamental rights on the planning of streets.

In Olga Tellis vs. Bombay Municipal Corporation (1985), a group of pavement dwellers moved to the Supreme Court of India to protest against the eviction without notice of their roadside shanties. The case is considered path breaking as this was one of the first cases in which the right to livelihood was explicitly recognized as a part of the Right to Life guaranteed by Article 21 of the Indian Constitution. Here, the court declares:

“The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood.”

While the court here speaks of the right to livelihood, this case was really about the rights of pavement dwellers to shelter – since their livelihood depended on the living near their workplace, the court ordered the municipal corporation to provide alternate accommodation to the population affected by eviction at a location not too far from their workplace.

In Sodan Singh etc. etc. vs. New Delhi Municipal Committee (1989), another landmark case, a blanket ban on street trading in the capital city of New Delhi was challenged by a street vendor. The court found that Article 19(1)(g) (right to occupation) included street vending in its scope.

“(2) Once street-trading is accepted as legitimate trade, business or occupation it automatically comes within the protection guaranteed under Article 19(1)(g) of the Constitution of India (3) Street trading is an age-old vocation adopted by human beings to earn living… abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading'.”

Neither of these judgments, obviously, gives pavement dwellers and hawkers a blank cheque in the use of footpaths. Both courts stress that regulation of these uses is very important. In Olga Tellis, Justice Chandrachud writes: “Footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets.”

Once again, some excerpts from Sodan Singh: “A member of the public is entitled to legitimate user of the road other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences.”

“Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads - to facilitate traffic - may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves resulting in chaos.”

However, in sorting the competing claims of pedestrians and other users, both judgments considered the pedestrian’s rights paramount. Any suggestion that there exist competing but equally valid claims over the street was rejected. In Olga Tellis: “The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security… There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter.”

In Sodan Singh, the judges appear more equivocal. They do say, “The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use.”

But then they go on to say that “[t]he primary object of building roads is undoubtedly to facilitate people to travel from one point to another. Quoting several authorities Byron K. Elliott and William F. Elliott in their treatise on the Law of Roads and Streets have defined a street as a road or public way in a city, town or village… P. Duraiswami Aiyangar in his book dealing with the Law of Municipal Corporation in British India (1914 Edn.) has observed that the primary and paramount use of the street is public travel for man, beast and carriage for goods.” Finally, “[i]f hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the busy thoroughfares, thereby paralysing all civic life.”

Thus the two judgments put together grant hawkers and pavement dwellers the barest minimum of rights – they may stay only as long as they are no encumbrance to pedestrians. The superiority of pedestrian (and other commuter) rights is not critically examined. Justifications for these claims come from a variety of sources, most notably from definitions that several scholars came up with. These definitions, very clearly, are not value-neutral. They implicitly make judgments regarding the legitimate uses of streets.

This, in my opinion, creates and perpetuates a circular argument regarding streets and their governance: the legitimacy of various uses of streets must be decided by law, including law obtained from the constitution. But the court, in its interpretation of the constitution, uses seemingly objective definitions which in fact incorporate extraneous values, in this case, values that are biased towards the elite. If we must decide the question of legitimacy based on the twin pillars of constitutional rights and public interest, then we must first break out of the circularity caused by using previous value-laden definitions of streets. A better framework would more explicitly account for the different values that should direct governance of streets.

An alternative framework for the governance of streets

The first three sections attempted to study and counter several arguments made against non-transportation uses on streets. Taken together, they make a strong case for us to discard the idea that streets are meant for travel alone. Once this predefined function is taken away, streets are no different from any other public spaces – common lands to be used by individuals according to the prevailing public consensus.

We may then see decision-making regarding the legitimate uses of streets as a political question, to be decided through negotiation, consensus building and electoral competition, all this informed by the rights guaranteed by the constitution of India. This would include the right to shelter and the right to occupation (as in the cases of Olga Tellis and Sodan Singh), but also the right to access – access to goods and services, to good quality housing, to educational and economic opportunities, and finally to recreation.

The rights listed above will most certainly lead to competing claims, and it is in the intersection of these claims that the State must function, acting as a trustee of public spaces. One might also argue that using streets for access is no less a private use of public spaces than the use of streets for hawking or shelter. Once we admit that all uses of these public spaces are essentially private, the State’s role becomes that of regulating private uses in public spaces to the greatest benefit of all.

Leaving decision-making to political processes is all very good, but one may ask what that will entail with regards to the actual uses that streets will be put to. It is likely that all streets will continue to be used at least partly for transport – I do not envisions streets that aren’t used for passage, but I do hope that we will shift to modes that allow for more sharing with other uses, non-motorized modes in particular. A truly democratic process will also add credibility to modes that previously lacked legitimacy in a technocratic planning process – for example, animal-driven carriages might see a comeback.

The changes that are being envisioned here bring sharing into the mainstream in several different ways. Transportation planners will be forced to reach out of their narrow compartments and take on new roles – to take into consideration the needs of pavement dwellers, hawkers and other users of the street. (After all, transportation planners are planners first – our ethical code requires us to be devoted to the cause of a just and prosperous society, not just an equitable transportation system.) This means that the qualifier “transportation” will no longer suffice; we will have to first become street-planners, planning for various uses of streets, and eventually people-planners, planning for the users themselves. Transportation planners might not necessarily have the tools to deal with these new demands made of them – we will have to learn from the experiences of housers, land-use planners, economists and anthropologists. Thus sharing of streets will also promote knowledge-sharing and perspective-sharing among different branches of study.

In short, not only are we talking about moving from single-use streets to streets as shared spaces, we are also talking about going from a narrowly-focused technocratic planning process to a democratic process that takes into account several shared societal goals.

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About the author:

Karthik Rao Cavale writes: "I'm a lapsed engineer from India who found that making cars was not as much fun as getting rid of them. This discovery brought me to Rutgers University, where I am currently doing my masters in City and Regional Planning and assisting Voorhees Transportation Center in its research. I spend my free time listening to Indian Classical Music, playing bridge or reading one of Jane Austen's novels for the millionth time." Karthik organizes (some of) his thoughts on the blog "India lives in her cities too!" at http://vishwakarman.wordpress.com/. He is not able to attend the conference this year but has taken a rain-check and in the meantime is submitting at least one article and reflection on sharing in transport, including on India's streets.)

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