‘The Public Thing’
Hussain Indorewala | Field/works Provocations and Propositions Undergraduate Thesis 2017-2022
On 24th September 2020, the Bombay High Court initiated a sou moto Public Interest Litigation (PIL) following the partial collapse of a 36 year old illegal building in Bhiwandi. The collapse had resulted in the loss of 38 lives, mostly low-income labourers. In its February 2022 judgement, the court concluded that the main cause of this tragic state of affairs in Mumbai is the rampant encroachment of “valuable government land,” enabled by rules and policies that confer a “premium illegality in favour of the encroachers” by gifting them government land in the form of tenements. This, the Court argued, is nothing but legalizing encroachments on prime public lands, making a mockery of the “public trust doctrine.”
The doctrine of public trust is rooted in Roman law and English Common Law. The doctrine asserts the affirmative protective duty of government in dealing with properties meant for public use. In other words, it serves to limit the alienation of public property. While in the narrow sense, the argument of the High Court is valid – slum rehabilitation does divert public land for private use – a consistent application of this doctrine would turn the city upside down.
For instance, is the monetization of public land (and thereby its alienation into private hands) to generate public revenue a ‘mockery’ of the doctrine? Is the transfer of a mass transit system financed by public investment into private hands for operation a ‘mockery’ of the doctrine? Is the transfer of leasehold land meant for a publicly designated purpose into private property meant for commercial exploitation a ‘mockery’ of the doctrine? Those who know Mumbai well will recognize these specific cases: BKC, Metro, and Mills.
The concept of ‘public’ is therefore more often than not a case of rationalization masquerading as rationality. But the question I wish to whinge about here is not one of ideology or justice, but of semantics. The ‘public’ is a very difficult word, full of contested meanings, not only in its general rhetorical use, but also in disciplines such as political philosophy, jurisprudence, and economics. The term came into English from the Latin publicus that itself had a range of meanings – ‘of the people’, ‘of the state’, ‘general’, ‘vulgar’ – and was perhaps a combination of Old Latin pubes (adult) and poplicus (people). In political thought, it found expression in the writing of the Roman philosopher Cicero’s De republica that defined the nature of commonwealth: the res publica (or ‘the public thing’) as the res populi (‘the people’s state’). In this work, res publica indicates the institutional arrangements and ways of life that protect and pursue the good of everyone. Subsequently, the adoption of the term ‘public’ in English in the 15th century was in the sense of ‘pertaining to the people at large’ as well as ‘open to all in the community.’
Most significantly, the term is used in contrast to ‘private’ which draws from its Latin root privare or to ‘deprive’ others, and therefore suggests privilege in critical usage, but also, when used in the sense of voluntary withdrawal, it suggests independence; or protection from community encroachment, as in privacy. The term ‘private’ used in conjunction with ‘property’ found its justification in the early classical liberal arguments where private property was explicated as human labour embodied in objects – these arguments were concerned with preventing the appropriation of the fruits of labour of individuals by the community or the state.
Traces of these earlier meanings persist in most contemporary debates and controversies over the terms ‘public’ and ‘private.’ In what follows, I discuss some of the undertones of the ‘public’ in its various uses.
The public as the state.
When speaking of social actors, ‘public’ most commonly indicates the state, in the sense of the means employed (state action) as well as the ends (for reasons of state). Here the term is distinguished from ‘private enterprise’, ‘private activity’, or ‘markets’ and typically the conflation of the public with the state accompanies the conflation of the market with society. In contemporary use, development ideology advocates both state withdrawal (disinvestment, privatization) as well as state intervention (public purpose, public interest). The key operational concept that justifies this paradoxical use is efficiency. For instance, the handing over of Mumbai’s traditionally public-run bus service and its assets to private contractors for operations is rationalized as a means to achieve better cost recovery to reduce public expenditure; while simultaneously freeway construction is undertaken at enormous public expense, on public land, and through state action to eventually benefit private automobile users. The substitution of the term ‘public’ with the ‘state’ is typical in the language of pro-market critics who are concerned with bureaucratic inefficiency and graft; similarly, ‘regulation’ and ‘planning’ evoke social engineering schemes that are based on technocratic hubris and the coercive power of the state – that despite well-meaning intentions end up doing more harm than good. This perspective draws from neoclassical economic theory that faults state intervention for dampening entrepreneurial initiative and imposing burdens on the economy. The exception here is the concept of ‘public goods’ – that are technically defined as non-rivalrous and non-excludable goods that perforce cannot be profitably provided through the market. In contrast to the neoclassical view, critics of pro-market policies typically substitute the ‘state’ with ‘public’ in their advocacy of government intervention and social welfare.
The public as the social
The contemporary scepticism of the extended scope of government in economic and political affairs can be traced back to classical liberalism, and to the basic philosophical question: are human beings social animals who strive for individuality, or are they individuals in nature who form social contracts with one another? In other words, is society prior to individuals, or are individuals prior to society? From the individualist conception, one strand of thinking insists that freedom consists in removal of impediments (negative liberty) while another calls for developing capacities to function as productive members of society (positive liberty). The former therefore posits a minimal role for non-voluntary institutions while the latter envisions a more expansive role for non-voluntary institutions insofar as they foster individual capabilities. Collectivists on the other hand take for granted a community in a political relationship, whose sustenance depends on collective projects and collective action. This advocacy is based on the view that social rationality expressed through collective processes has a greater moral value than market rationality that is driven by the pursuit of private gain. The public domain stands for more than simply the particular interests of the members that compose it – rather it insists that people have a relational obligation to each other, and ought to care about affairs that concern them in common.
The Public as the general
Very often, ‘public’ is a shorthand for general, that stands in contrast to particular. The shift in meaning is significant since here the general stands for the whole (everyone in society) and therefore evokes an undifferentiated collectivity as opposed to interests of specific groups. This is the sense in which the term ‘public space’ or ‘public right of way’ is used – a resource that in theory is for everyone. The concept becomes clearer in reference to, say, the Metro system in Mumbai, which is hailed as a ‘public transport’ project, but in the sense of mass transit (that transports many people at once) rather than a universal public service (that provides affordable mass transit as an essential right). In the context of extreme social inequality, universal access is indispensable to the poor, but unjustifiable to elites. Consequently ‘public’ interventions are acceptable insofar as they can be captured by better-off groups. The policy of handing over ‘public’ parks to local NGOs and resident groups for ‘care taking’ is a handy example of elite capture.
The Public as the popular
An alternative to the general-particular framing is the notion of public as popular – in contrast to the special – which invokes social class as the key referent. In positive usage, the public is the site of community, social action and popular culture. The city is produced collectively, and the public realm is where identity, assertion and enterprise find their best expression. On the other hand, this usage can also be pejorative, in the sense that what is public is ordinary, the domain of the riff-raff, or a sign of the unworthy – as something that must be escaped from rather than fostered. Even in situations where public services and systems function well, a conspicuous withdrawal from the ‘public’ serves as an index of status and prestige. In our context, where the basic infrastructure and services are plagued by official apathy and neglect, the public seems to be the last refuge of the wretched. The state of basic health and primary education in the city serve as an illustration: surveys on healthcare indicate that low-income households chose public healthcare out of economic compulsion rather than choice. Since de-industrialization, a large section of the city’s population now relies on the urban public realm for shelter, livelihood and services, accentuating elite anxieties about ‘urban problems’, which in turn have made the public arena more vulnerable to privatization and renewal.