- 1 In this case the term ‘traders’ refers to all people engaged in commercial enterprises whether whol (...)
- 2 Indian Supreme Court Judgment Interlocutory Application No. 22 in Writ Petition (Civil) No. 4677 of (...)
1In 2006 the City of Delhi in northern India, erupted into chaos, as a host of public protests and demonstrations pushed the city to a standstill, closing down schools, public transport and causing a stand-off between the protesting traders1, the police and eventually the army. The protests had been sparked by a Public Interest Litigation case, called the Sealings Case,2 over illegal land use and construction in the city. As a consequence, the Supreme Court of India (SCI) insisted on closing down over 40 000 commercial activities that contravened Delhi’s masterplan. The case had been brought to court by a coalition of middle class Resident Welfare Associations who were attempting to defend their neighbourhoods against what they saw as informalisation and a degrading form of urbanism, which went against the aesthetic values that they were attempting to enforce. Their turn to litigation was informed by a long and sympathetic history of convergence between the courts and the middle classes in India (Dembowski, 2001; Ramanathan and Dupont, 2004; Ramanathan, 2005 and 2006; Dupont, 2008) and what was a shared hegemonic project and vision of Delhi.
- 3 Constitutional Court of South Africa, 2008: Occupiers of 51 Olivia Road, Berea Township, and 197 Ma (...)
2At almost the same time, half a world away in Johannesburg South Africa, a group of 400 poor residents living in the dilapidated San Jose building in the inner city fought an eviction from the City of Johannesburg3. The eviction was part of the local government’s attempt to regenerate the old Johannesburg Central Business District and its surrounds. The regeneration projects were applied across a range of accommodation that were described as “bad buildings” and which generally had no access to services i.e. water and electricity. Residents from these buildings were evicted in order to allow for private sector refurbishment and on-sale of the buildings. The San Jose residents, having exhausted the possibilities of engagement, with political representation and local and provincial bureaucrats, took up the cudgels of litigation against the City of Johannesburg to oppose their eviction. With the assistance of a legal aid organisation, the Centre for Applied Legal Studies, the case eventually landed up in the Constitutional Court of South Africa. Here the Constitutional Court insisted that the parties to the case engage with each other and come to a resolution which they would then make into a court decision. The negotiation ultimately resulted in the supply of interim services to the building and temporary housing in another state-old building, with highly subsidised rental.
3The article builds on earlier work completed on law and geography or law and society literature and similar to Datta (2012) and others (Hunt, 1990; Litowitz, 2000) argues for a nuanced approach to understanding the relationship between rights, claims, litigation and citizenship. I argue that the courts are able to provide sites of liberation and channels of access to claims and citizenship, however, unlike Chatterjee (2004 and 2011), Bourdieu (1987) or Gramsci (1996) do not agree that the court becomes only useable for those inhabiting “civil” society or solely as a space for elite interests and thus specifically as an apparatus of the dominant hegemonic group. Rather I argue that the courts’ larger projects i.e. how it sees itself, its role in the larger society and its spatial vision of the city, which is an expression of its discourse, determines who has access to the court, how courts will make their judgements and thus who will be treated differently to the norm. All of which is linked to larger political processes that are at work. In doing so, courts provide for exceptional treatment of the litigants that they find for. By which I mean, treatment that in some way contradicts the norm, is unusual, different or a departure from how others in the same situation are treated by the state or within the political realm. In point of fact, the entire purpose behind litigation in many cities in the global south is to protest against the existing regimen of exclusion, maltreatment or “invisibility”, and to access exceptional treatment.
4Largely within the field of rights, judicial studies and urban citizenship, there have been some common threads. Bourdieu, Gramsci and Chatterjee have each in their own way articulated a relationship between the elite and the court/judiciary. Bourdieu conceptualised the legal world as one of the many “fields” constituting social life, his sociology of law sought to uncover the various mechanisms by which law maintains its privileged position and how, in doing so “law consecrates the established order by consecrating the vision of that order which is held by the state” (Bourdieu, 1987, p. 838). This resonates with Gramsci’s (1996) view that courts are one of the key apparatuses of hegemony able to maintain dominance by the elite block (Fontana, 1993). For both Gramsci and Bourdieu, part of the law, judiciary and legal system’s power lay in the invisibility of its moral authority (Sibley, 2005). In such conceptualisations lawyers, judges, courts make decisions that are congruent with their own world view or visions of the world, keeping with their own specific socio-political positions (Argang, 2006). With the consequence that rights, the law and its avatars become mechanisms of oppression and repression of the state, made manifest in terms of relocations, forced removals, and the overall repression and criminalisation of many aspects of poverty and its expression in the “informal”.
5Chatterjee (2004) although not discussing the judiciary or the courts directly offers an account of social political life in which rights-bearing legal residents inhabit and have access to “political society”, which includes the logistics and refuge to the legal system. The poor, the marginal and the “other” inhabit or become the denizens of “political society (Harriss, 2005) using “Big men” politics and inhabiting spatial-social sites where the “universality of law is abandoned in order to produce a special set of acts, regulations and programmes specifically to monitor and govern the spaces of the urban poor as if that were the norm” (Datta, 2012, p. 518). Chatterjee’s construction of the spaces of the poor resonates with Agamben’s (2005) exceptionalism, whereby specific groups experience the withdrawal of law and the suspension of rights. As a consequence of these exemptions groups and individuals are “desubjectivised” (Butler, 2004) in what Gregory (2010, p. 154) calls legal-lethal spaces and “othered” to the point where the protection of universalized human rights is withdrawn.
6The other side of the coin in opposition to the elite capture of the courts has been the notion that rights-based litigation can be usefully mobilised by poorer and more marginalised groups to ensure the “right to the city” (Coggins and Pieterse, 2011 ; Wilson, 2009; Wilson and Dugard, 2011). Furthermore, rights-based legal claims have come to be associated with the ability to provide a counter-hegemony that serves the poor (Hunt, 1990) and a court which can therefore offer liberatory moments (Ray, 2009 ; Rubin, forthcoming). In keeping with such a paradigm, exceptionalism has not been sufficiently explored but here I would argue that litigation can lead to “positive” exception – not a negation of law but a provision of rights and claims, so that through litigation into circumstances in which certain constituencies have been ignored by the state. In doing so, the judiciary often comes into direct conflict with the executive and the bureaucratic arms of the government.
7Thus my argument is more in keeping with Ong’s (2006) description of how “zones of exception” whereby litigation may contribute “through freedom, rights-talk, virtue, nationalism” to ‘visions of the good life’” (cited in Roy, 2011, p. 234). It takes as its premise that the law is not universally applied, nor as Chatterjee (2004 and 2011) argues is there necessarily a generalizability about how and when urban constituencies can claim rights. I therefore dispute his “split between a narrow domain of civil society where citizens related to the state through the mutual recognition of mutually enforceable rights and a wider domain of political society where government agencies dealt not with citizens but with populations to deliver specific benefits or services through a process of political negotiation” (Chatterjee, 2011, p. 13-14), Rather I argue that in many circumstances it is not a question of who is or is not rights-bearing, as the lack of entitlements and access to the state and state resources is the general rule, particularly in cities of the global south. Thus it is the courts that provide for exceptional treatment irrespective of which side of the legal/lawful line a community is on. The end result is that small groups are able to gain access to state resources or to influence policy and practise and thus have their interests considered in ways that are vastly different to the majority of urban residents – that is the exceptionalism in question.
8However, the discussion above does not answer to why certain urban constituencies are picked out for exemption, I want to go further and explore the reasons of why such exceptionalism is possible and what makes it possible. In doing so I circle back to Bourdieu to explain why certain trajectories and certain urban identities and projects are given currency by the court and not others. According to Agang (2006, p. 2) “jurists are perpetually engaged in social struggles in order to produce visions and definitions of the world that are most congruent with their own particular interests. Using the alleged neutrality of law, jurists tend to produce the effects they profess to describe” (emphasis in original). I would generally agree that judicial decisions seem to track quite closely with the political and social affiliations of the courts and judges and furthermore, the judicial realm is active in the production of the political visions to which judges and juries subscribe. Thus courts are active agents in the pursuit of certain projects and define for themselves roles within their larger projects (this rather ephemeral statement will be made clearer when looking at the cases in question). Through judgements and decisions, courts pursue specific social and political outcomes and seek to entrench their own roles in the existing structures. It is thus the combination of an overall ideological alignment as well as a reinforcement of their desired role in their own projects and the wider political landscape that shapes the support of specific litigants and cases and in doing so constructs moments of exception. However in doing so the court can and, as will be demonstrated in the cases below, does set itself up in opposition to some of the prevailing policies of certain aspects of the government, which can construct a set of coalitions between certain urban constituencies and the court in contestation with those in the formal corridors of power.
9The comparison between middle-class Resident Welfare Associations (RWAs) in Delhi and poorer inner city residents in Johannesburg is thus useful as it explores the nature of exclusion and exceptionalism in different contexts. Demonstrating how exclusion from governance and urban co-production traverses income or status and how litigation and alignment with the court provides for exceptional treatment. It also allows for a demonstration of the fact that there are different types of judicial projects which have two very different kinds of outcomes within the cities in question. Thus the two cases are juxtaposed in order to postulate how in certain circumstances i.e. where there is a shared hegemonic vision and congruence, between the courts’ larger projects and that of the litigants, courts becomes sites in which certain groups are “othered” by giving them even more rights and claims than the average urban resident in the cities in question. The text is based on doctoral research undertaken in India and South Africa between 2010-2012 with over 70 interviews with key respondents involved in the two cases under discussion and in the wider discourse of social mobilisation and socio-economic rights and policy in the two countries. The following sections provide an overview of the nature of “normal” and exceptional treatment within the two contexts.
10In both cities, exclusion from entitlements, the opportunity to engage with the state and co-produce the city is the daily experience of most residents. In Delhi the sheer scale of the population and the ratio to its democratic representatives (1 councillor to ever an average 73 264 people according to Tawa Lama-Rewal, 2007, p. 6), coupled with incomprehensible governance processes of shared institutions, which according to Chakrabarti (2008.p. 99) literally means that “In many neighbourhoods, especially in higher-income areas, residents do not even know their local municipal councillor”. Furthermore, Delhi residents argue that the “… Indians have a fantastic thing there is so much of multiplicity of authority… so many departments that you just running around in circles” (Kakria, Pers.Comm., 2011). In Johannesburg the scale is not the issue, with one ward councillor for every 15 000 registered voters, rather it is the participatory and representative mechanisms within the city have been failing (Benit-Gbaffou, 2008). The flow of political allegiances to the dominant party, the African National Congress make ward structures, which are supposed to be the voice of the citizens able to engage with the ear of the state, largely unresponsive to local needs (Benit-Gbaffou, 2007, Benit-Gbaffou and Tawa Lama-Rewal, 2011).
11In both contexts the conditions described above are teamed with institutional frameworks that mean that even elected officials have difficulty in accessing bureaucratic structures. Furthermore, existing legislative and constitutional mandates means that local authorities are not necessarily responsible for certain functions i.e. housing in Johannesburg, and land in Delhi, both of which sit at higher spheres of government, making the state in many cases both distant and unable to respond to local need. In addition, the majority of residents have been excluded from city-producing projects that directly affect them despite rafts of legislation that have been promulgated to ensure citizen-participation in city development plans, programmes and policies. In the case of the City of Johannesburg, the Bad/Better Buildings Programme, which was intended to regenerate/rejuvenate the old Central Business District, was largely designed through a coalition of the local government and business interests. Residents of the inner city had little input into its design or implementation (Tissington, 2008; Rubin, forthcoming). In Delhi, the city’s masterplan designates all land use in the urban territory and defines the legality of all activities, however, although much has been said about the participatory nature of the plan, few if any residents are consulted around its design or content (Rubin, 2013).
12The consequence is largely exclusion from formal processes of city-making and limited access to urban resources. Given these exclusions urban residents have looked for alternative modes of engagement and channels. Middle-class modes of political engagement in Johannesburg and Delhi are largely removed from both the conventional mechanisms of representative democracy and, given their smaller numbers, the use of political society (Harriss, 2005; Tawa Lama-Rewal, 2007, p. 7) and into the vacuum “… judicial processes [have] gained prominence” in the political lives of the middle-income groups, thus: “environmental and consumer rights groups pursue public interest litigation (PIL) to reshape Delhi’s cityscape by the removal of thousands of polluting industries and the relocation of numerous slum settlements (Baviskar, 2003; Veron, 2006)…” (Te Lintelo: 2009b, p. 73). These alignments are also taking place within a larger context of contestation over power and legislative supremacy in the long-running battle between the Supreme Court of India and the Indian government (Sripati, 1998).
13In South Africa, in the face of failing participatory government and “Given the executive’s stranglehold over the legislature, citizens increasingly look to the judiciary to ensure executive accountability and for the protection of their basic interests” (Pieterse, 2004, p. 388). Thus, poorer residents mobilise their claims and entitlements through the twin processes of litigation and public protest. The Constitutional Court has proven largely sympathetic to poorer urban constituencies and has held the state to account (Wilson and Dugard, 2011). Similarly to the Indian case, the Constitutional Court has been on the receiving end of severe national and local government sanction, who feel strongly that the court is interfering into territory that they know nothing about and thus despite their constitutionally entrenched mandate of judicial supremacy consistently over-step their bounds.
14In both contexts such litigation has proven remarkably successful for poorer groups in Johannesburg and wealthier communities in Delhi (Wilson and Dugard, 2011; Ramanathan, 2005) and has meant that compared to other urban constituencies these groups have been able to access considerably different treatment from the state. The following section explores how exceptional treatment has been made manifest in two specific court cases that are representative of the legal trajectories that have been seen in both countries.
15During the Sealings and Olivia Road cases, the Indian Supreme Court (SCI) and the South African Constitutional Court ensured that the litigants were given access to the state, in the San Jose case by ensuring that meetings between the City of Johannesburg and the litigants took place as part of a court order and supported the claims and entitlements of the litigants. The courts offered the litigants in both cases ways of co-producing their space– literally influencing the way that the city looked, how it was used and who had access to it. They also ensured that the litigants had access to urban resources, which the majority of urban residents were denied.
16In the case of the Delhi RWAs, the SCI agreed with the RWAs’ claim that their residential colonies should only be used for residential purposes by middle class households. The residents felt that the illegal and unauthorised use of the residential spaces compromised their visions of these sites, and resulted in what Purcell would call a form of home-owner activism (Purcell, 2001). The residents claimed that ‘… they [the traders] had encroached upon lane by lane, street and so on and so forth. Where actually the inside roads… are meant for the people to walk over, the children to walk over. ’ (Sharma, lawyer who was part of the initial petition to the court, Pers. Comm., 2011). There were also concerns over the introduction of strangers who were not generally of the same class or caste into these spaces:
17‘[The] the social fabric is disturb[ed]… you see you are sitting in my house, if there is shop, hotel, restaurant, bar, whatever is next door and another shop, restaurant, hotel whatever next door I have a house, I have a family, you have seen my daughters, you have met my wife, they go out of the house, what kind of feeling, there are strangers lurking”. (Kakria, Greater Kailash Colony RWA, Pers. Comm., 2010)
18Many of the residents also felt that the traders’ activities posed some kind of threat to the residents’ quality of life: ‘The residents wanted to stop the activities as they caused more traffic and caused issues with parking. They also said that the activities were noisy and disrupted the area.’ (Pawar, Councillor for Greater Kailash, Pers. Comm., 2011). Furthermore, the RWAs claimed that they had been consistently ignored by the local authorities who had refused to do anything about the illegal activities.
- 4 Indian Supreme Court Judgment Interlocutory Application No. 22 in Writ Petition (Civil) No. 4677 of (...)
- 5 Indian Supreme Court Judgement Interlocutory Application No. 22 in Writ Petition (Civil) No. 4677 o (...)
- 6 M.C. Mehta vs. Union Of India & Ors on 29 September, 2006 Author: S . Y.K. Bench: Y Sabharwal, C Th (...)
19The SCI went far beyond its original legal brief which was to decide which municipal body was responsible for sealing and instead directed the Municipal Corporation of Delhi (MCD) to ‘… within 10 days give wide publicity in the leading newspapers directing major violations on main roads to stop misuse on their own, within the period of 30 days’.4 Furthermore, the SCI agreed with the RWAs and throughout their judgements berated the MCD and the Delhi Development Authority for their apathy, incompetence and corruption and unwillingness to implement the masterplan. In their original judgement, the SCI blamed the commercialisation of residential space firmly on the MCD and stated: ‘Such blatant misuse of properties at large scale cannot take place without connivance of the concerned officers. It is also a source of corruption’.5 A bone that the SCI continued to pick throughout almost all of its judgements, and in its 29 September 2006 ruling claimed that ‘It is a common knowledge that these illegal activities are also one of the main sources of corruption… It was also observed that such large scale misuse cannot take place without the connivance of the [MCD] officers’.6 The SCI consistently argued that the cause was due to ‘acts of omission and commission by the authorities… resulting in the environment in the residential colony being totally polluted and civic amenities jeopardised’. The SCI insisted that aspects of the masterplan were implemented, namely assuring that residential areas were kept mono-functional and any activities that contravened a very conventional notion of what should be allowed in a residential area was banned (see Table 1 below).
Table : Extract of SCI forbidden and approved activities for Delhi's residential colonies7
21Thus the Sealings case provided moments of exceptional treatment for the RWAs. Within a dysfunctional system of representation and a degree of inertia from the local authorities, the RWAs were able to access and be heard by the state in the form of the court. Through litigation the SCI demanded that the local authorities seal and remove the offending activities and enforce the RWAs vision of how the city should look and who should have access and rights to these spaces. Something which almost no other group up until this point in Delhi had had the opportunity to do.
22The form of exceptionalism was slightly different for the San Jose residents but still meant that the residents were able to claim rights and change the spatial formulation of the City of Johannesburg. After hearing the case, the Constitutional Court chose not to make a decision immediately and instructed the two parties (the San Jose residents and the City of Johannesburg) to engage with each other directly and meaningfully. The parties were set the task of coming to agreement about temporary and longer-term housing solutions for the residents, as well as interim measures to make the two buildings safe for human occupation, until a final agreement was reached. The negotiation was hammered out during a series of meetings between the San Jose residents and the City of Johannesburg and their legal representative. (Khetani, Pers. Comm., 2010; Tissington, pers. Comm., 2010 and Gotz, Pers. Comm., 2010). After two extensions to the deadline, a negotiated settlement was eventually reached, and brought before the Constitutional Court for ratification.
23The negotiated settlement was not able to agree to the details of everything that the Court required and most importantly there was no decision about permanent accommodation for the residents8 (Royston, Pers. Comm., 2010). However, a series of interim plans were agreed to and the City undertook to clean and sanitise the building and provide basic water and sanitation. The residents agreed to be relocated to temporary, alternative accommodation, within the inner-city. Two buildings, MBV and Old Perm, owned by the City were to be upgraded and provided to the residents by the Johannesburg Property Company (JPC) and the City of Johannesburg’s Housing Unit (Magoro, Pers. Comm., 2010). Furthermore, it was settled that the City would not charge more than 25% of a household’s income for rental in the two new buildings.
24The Olivia Road case had clear moments of exceptional treatment: the first was in the fact that the residents were given the opportunity to actually talk to and engage with the state, in the form of the City of Johannesburg, in a way that few other poor Johannesburg residents had; the second; was that they were able to access interim services, which had been shut off in almost all other inner city “bad buildings”, and third; the inner city regeneration process had intended to provide alternative accommodation for evicted tenants but had not done so, and the San Jose residents were the only group, up until that point, to be able access state subsidised rental accommodation in the City of Johannesburg. On all three counts this was exceptional treatment. The reasons for which are discussed in the following sections.
25As mentioned earlier, I would argue that the reason for these decisions lies in the idea of jurists’ interests and how these groups aligned to the projects of the litigants and how the cases could be used to pursue the political and ideological projects of the courts. The following section explores what these interests were and how they played out.
26The reasons for the SCI’s willingness to heed and agree with the RWA’s PIL lie in the convergence between the SCI’s and the RWAs’ middle class vision of Delhi, which is largely that of a world class city. Bhan (2009, p.140) noted that: “Since Delhi won the bid to host the Commonwealth Games in 2010, the city has seen the launch of sustained massive media campaigns by leading newspapers and by the city government, speaking of Delhi’s arrival as a “world class city”. The Games have made visible the aestheticization of city space and the vital importance of how the city is seen and consumed by a global audience”. However evidence suggests that court-led city urban restructuring in line with this thinking preceded preparations for the Commonwealth Games and has predominantly been led by middle class PILs (Bhan, 2009, p. 141). This is due to the fact that Delhi’s municipal authorities have only adopted the world class city project that in a haphazard manner and have pursued it in parts of the city that are more exposed to international media scrutiny and investment and less so in the colonies of the middle classes (Ghertner, 2011; Rubin, 2013).
27An overview of litigation in Delhi demonstrates that the SCI has progressively become more sympathetic and supportive of the world class city project in Delhi brought to the court through middle-class PILs. It is also clear that there has been a middle-class bias in the SCI’s decisions: beginning with the Compressed Natural Gas (CNG) case, which resulted in a series of judgements: the first, in 1994, mandated the phasing out of lead from all fuel in India’s four largest cities - Delhi, Mumbai, Calcutta, and Madras. Then two years later the SCI ruled that all government vehicles in Delhi had to be converted to CNG, and in 1998 the Court, on its own motion, mandated that all buses in the city had to be adapted from diesel fuel to CNG by March 31, 2001 (Balakrishnan, 2008). In 2000, the Supreme Court ordered the closure and relocation of all “nonconforming industries” operating in the urban area of Delhi to the periphery (Bentinck and Chikara, 2001). The case took several years and a range of court orders and in combination with the 1996 MC Mehta case on the removal of “hazardous activities” managed to remove a significant number of industrial activities to the peripheries and outskirts of the city. Additionally, Te Lintelo (2009b, p.69) notes that in “March 2006, the Supreme Court ordered the police and MCD to cleanse street vendors from the highly commercial Chadni Chowk area, following complaints by a local business association”.
28The proposition is that the PILs especially those concerning the urban environment align with the SCI’s own attitudes and visions. Baxi (1993), along with a host of other authors, (Ramanathan and Dupont, 2005; Dupont, 2008; Bhan, 2009), “believes that [this is because] the interests of global economic elites now colour the thinking of the Indian judiciary, resulting in rulings that benefit those global elites…” Gauri (2009, p.7) argues that it is not just a case of “elite capture” but that the “Indian courts have adopted the statist and development mind-sets associated with the Indian state itself, and that the universal privileging of civil and political rights over socioeconomic rights has affected the thinking of the Indian judiciary”. The courts have been specifically sympathetic to these projects as they see Delhi as “a show window to the world of our culture, heritage, traditions and way of life. It cannot be allowed to degenerate and decay” (quoted in Bhan, 2009, p.128). Baviskar (2004, p. 90) further points out that the courts have adopted the viewpoint that “Delhi matters because very important people live and visit there; its image reflects the image of the nation-state” and is thus ruling according to this spatial vision”.
29In addition in supporting the middle class RWAs and the world class vision of Delhi the SCI is able to capture a small but increasingly powerful urban constituency that has to a large extent been left out of Indian bi-partisan party politics (Mehra, 2012). In doing so, the SCI is able to pursue a vision that it has clear sympathy with and to construct a political front that has little or nothing to do with participatory democracy but is legitimated through PILs and thus able to directly contest national and local authorities in its long running bid for legislative supremacy.
30Similarly to the Sealings case, the Olivia Road trials continued the Constitutional Court trajectory around housing and evictions cases. The genesis of this trend was the seminal Grootboom case in 2001 where the court concluded that the state housing programme was invalid (Wesson, 2004). Following Grootboom, there were a string of cases in a similar vein: the Port Elizabeth Municipality vs. Joe Slovo case was seen to “adequately capture the tensions between the interests of local government and private capital in dictating the terms of urban regeneration on the one hand, and those of inner-city inhabitants in maintaining their livelihoods…” (Coggin and Pieterse, 2011, p. webpage). After these two, there was the Modderklip, a further case contesting property and shelter rights, continued the trend of looking after the rights of people who would be made homeless by eviction (Wilson, 2009, p. 278). Then the Jaftha case examined the question of whether a house could be sold in execution of debt on another property, if such a sale resulted in homelessness. (Christiansen, 2007, p. 372).
31Thus over time a progressive jurisprudence over housing rights and evictions has evolved. The success of housing and evictions for poorer people seems to lie in the nature of the constitutional clause dealing with the Right to Housing, which states:
32“1. Everyone has the right to have access to adequate housing.
332. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
343. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions” (SA Constitution, 1996: Section 26).
35Parts 1 and 2 are considered positive rights i.e. what the state is obliged to do under certain circumstances whilst Part 3 is considered a negative right i.e. what the state or any other actor should refrain from doing. Wilson and Dugard (2011, p. 665) argue that “The Constitutional Court (“the Court”) has yet to develop a substantive account of the positive obligations socio-economic rights place on the state” and has significantly focused on the negative aspect of the right, which is the assurance that people are not arbitrarily deprived of their shelter. Furthermore, the court has attended to the procedural aspect of South African justice and in housing cases has often insisted on some form of engagement. Thus, the Constitutional Court has been comfortable with enforcing the procedural and negative features of the housing right, which is why there has been significant emphasis and progress in this arena (Smith and Rubin, forthcoming).
36Given the above it becomes clear that the SA Constitutional Court has attempted to place their emphasis on procedural justice is trying to ensure a participative and deliberative form of justice. The ideas seems to be that ‘They [the Constitutional Court are] not really prepared to prescribe the outcome at all. They want to prescribe a fair process and hope that a fair outcome will come about’ (Hawthorn, Pers. Comm., 2010). Furthermore, Christiansen, (2007, p. 356) argues that the Constitutional Court “is centrally involved in the ideological project of the "new South Africa." As former Chief Justice Chaskalson described it, "[u]nder our Constitution the normative value system and the goal of transformation, are intertwined." This ideology is focused on an image of South Africa as a reformed nation-not just a liberal democracy but a "human rights state"-which is in the process of rising to its great potential to transform itself and to be an example to other nations. The Court plays the role of chief architect of a "society based on democratic values, social justice and fundamental human rights” (SA Constitution, 1994). A vision and a project that seems to be increasingly at odds with the work and ideology of what is being seen by some critics as a non-participatory, neo-liberalised government. So similarly to the Indian case, the South African Constitutional Court’s vision and project introduces a source of opposition to the existing political structure that sits outside of South African party politics, however the intention of the Court is not to contest supremacy but rather to force the post-Apartheid state to keep to its original constitutional and political commitments in a situation of enormous one-party dominance.
37The above cases demonstrate that the courts provide exceptional treatment, however, unlike other writing on the topic this piece argues that the deciding factor in how exceptionalism is accessed and how exceptional treatment is granted has little to do with legal dominance of a specific class. Nor does exceptionalism only have to mean some type of suspension of rights and can mean the opposite which is the operationalization of rights or the manifestation of law. Given that the application of law and rights are either suspended or inactive in many ways in Indian and South African cities then litigation provides for exception. Thus these cases indicate that the courts can become “zones of exception” in the sense that they provide a singular platform for citizens to be able to access the state, state resources and participation in city-making projects. The cases demonstrate that the court instead of being a zone of exception in which rights disappear, rather certain types of rights and the rights of certain groups become amplified in these spaces. The RWAs’ rights to a middle class vision of their neighbourhoods was given precedence, as were the San Jose residents’ right to housing over a host of other claims. Furthermore, because of the power of the courts, they are also able to institute exceptional treatment for those in their favour, so that the RWAs had their vision enforced by the courts just as the San Jose residents accessed better housing and infrastructure than most other inner city residents had up until that point. Thus small groups who would otherwise have been ignored or excluded from the city were given a site that provided for unique forms of engagement within the existing governance milieu and irregular forms of treatment.
38The evidence seems to indicate that exceptionalism is a function of an alignment between the larger goals of the court and what they are attempting to achieve and the needs of the litigants and their demands on urban resources. In cases where the larger project is pro-poor, and concerned with issues of procedural justice and maturing democracy, the court as a zone of exception provides cause for optimism for a more progressive agenda. However, in circumstances where the vision is dedicated to a globalised, middle class vision, the consequences for poorer groups could potentially be dire. Furthermore, the actions of the courts cannot be taken out of the political, whereby due to the exclusionary activities of political parties and bureaucratic procedures the courts are constructing another political front, separate from party politics, and largely in opposition to elected officials and their projects and in a sense are capturing the “lost” constituencies within their major cities. Thus the significance of litigation for cities, planning, voice and access to resources are profound and that the courts need to be understood as key actors in current and future co-production of urban space.